Renee Antonio Fragoso v. State

FILED BY CLERK
IN THE COURT OF APPEALS MAY 10 2005
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

RENE ANTONIO FRAGOSO, )
)
Petitioner, )
)
v. )
) 2 CA-SA 2005-0001
HON. HOWARD FELL, Judge Pro ) DEPARTMENT B
Tempore of the Superior Court of the )
State of Arizona, in and for the County of ) OPINION
Pima, )
)
Respondent, )
)
and )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
)

SPECIAL ACTION PROCEEDING

Pima County Cause No. CR-20042912

RELIEF DENIED

Law Office of Cornelia Wallis Honchar
By Cornelia Wallis Honchar Tucson
Attorney for Petitioner

Barbara LaWall, Pima County Attorney
By Taren M. Ellis Tucson
Attorneys for Real Party in Interest
P E L A N D E R, Chief Judge.

¶1 In this special action proceeding, petitioner Rene Fragoso challenges the

respondent judge’s authority to impose a “cash-only” restriction on a pretrial release bond.

In an earlier order, we accepted jurisdiction but denied relief, with a decision to follow. This

is that decision. We hold that Arizona law, contrary to Fragoso’s argument, does not

prohibit a cash-only condition on bail and, therefore, that the respondent judge did not

exceed his legal authority in imposing that condition on Fragoso. See Ariz. R. P. Spec.

Actions 3(b), 17B A.R.S.

BACKGROUND

¶2 Fragoso was indicted along with numerous codefendants for conspiracy to sell

marijuana. The respondent judge initially set Fragoso’s bail at $250,000 “cash,” but later

reduced it to $50,000 “cash.” Fragoso moved to modify the conditions of his bail, detailing

his personal financial situation and showing he did not have access to $50,000 cash.

Fragoso noted, however, that an extended family member (his live-in girlfriend’s father)

owned real estate worth more than $50,000 and was willing to pledge that property as

collateral for a secured bond. Citing article II, § 22 of the Arizona Constitution and Rule

7.2 and 7.3, Ariz. R. Crim. P., 16A A.R.S., Fragoso asked the respondent judge to lift the

“cash-only” restriction and permit him to post a $50,000 secured bond. After hearing

argument on the motion, the respondent judge denied it. This petition for special action

followed.

2
 JURISDICTION

¶3 Fragoso has no adequate remedy by appeal, as any issues involving his pretrial

incarceration or release will become moot once his trial begins. See Ariz. R. P. Spec.

Actions 1(a). His claim that the respondent judge had no legal authority to impose cash-

only bail is reviewable by special action. See Ariz. R. P. Spec. Actions 3(b). Moreover, this

purely legal issue is one of first impression and statewide importance and could readily recur

in other cases, making special action review particularly appropriate. See O’Brien v.

Escher, 204 Ariz. 459, ¶ 3, 65 P.3d 107, 108 (App. 2003). Accordingly, we accept

jurisdiction. See Davis v. Winkler, 164 Ariz. 342, 345, 793 P.2d 99, 102 (App. 1990)

(addressing constitutional and statutory scope of Arizona bail provisions in special action

proceeding); see also Mendez v. Robertson, 202 Ariz. 128, ¶ 1, 42 P.3d 14, 15 (App. 2002)

(accepting special action jurisdiction of denial of motion to reexamine conditions of release,

including amount of bail).

DISCUSSION

¶4 The issue Fragoso poses is whether the respondent judge had “the power to

set a ‘cash only’ bond under the Arizona Constitution, related statutes or Court Rules.”

Thus, this issue involves a provision in the state constitution, Ariz. Const. art. II, § 22; a

criminal statute, A.R.S. § 13-3967; and a rule of criminal procedure, Rule 7, Ariz. R. Crim.

P. The United States Constitution is not implicated; although the Eighth Amendment

3
protects against excessive bail, “there is no federal constitutional right to bail.” Rendel v.

Mummert, 106 Ariz. 233, 235-36, 474 P.2d 824, 826-27 (1970).

¶5 Fragoso argues that a trial court is not authorized under any of the foregoing

Arizona provisions to impose a cash-only requirement on bail and, conversely, that he “has

a right to post a ‘surety bond.’” According to Fragoso, the respondent judge’s imposition

of cash-only bail violates the provision in article II, § 22(A) of Arizona’s Constitution that

“[a]ll persons charged with crime shall be bailable by sufficient sureties.”1 He further

contends no Arizona statute or rule “mentions, much less, authorizes a species of security

known as a ‘cash only’ bond.”

¶6 “Courts should decide cases on nonconstitutional grounds if possible, avoiding

resolution of constitutional issues, when other principles of law are controlling and the case

can be decided without ruling on the constitutional questions.” In re United States

Currency of $315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995); see also

State v. Korzuch, 186 Ariz. 190, 195, 920 P.2d 312, 317 (1996) (“In general, . . . we should

resolve cases on non-constitutional grounds in all cases where it is possible and prudent to

do so.”). Accordingly, we first address the meaning and scope of the pertinent Arizona

statute, § 13-3967, and rule, Rule 7, Ariz. R. Crim. P., because if cash-only bail is

impermissible under one or both of those provisions, we “need not reach the constitutional

1
Article II, § 22(A) sets forth several exceptions for capital cases, certain sexual
offenses, particularly dangerous indictees, and other scenarios not present here.

4
question to decide the case.” R. L. Augustine Constr. Co. v. Peoria Unified Sch. Dist. No.

11, 188 Ariz. 368, 370, 936 P.2d 554, 556 (1997).

¶7 “We review the interpretation of statutes and court rules de novo.” Cranmer

v. State, 204 Ariz. 299, ¶ 8, 63 P.3d 1036, 1038 (App. 2003). We evaluate procedural

rules using principles of statutory construction, id., reading those rules in conjunction with

related statutes and harmonizing the two whenever possible. Thielking v. Kirschner, 176

Ariz. 154, 159, 859 P.2d 777, 782 (App. 1993). We interpret statutes and rules in

accordance with the intent of the drafters, and we look to the plain language of the statute

or rule as the best indicator of that intent. Zamora v. Reinstein, 185 Ariz. 272, 275, 915

P.2d 1227, 1230 (1996). If the language is clear and unambiguous, we give effect to that

language and do not employ other methods of statutory construction. State ex rel. Romley

v. Hauser, 209 Ariz. 539, ¶ 10, 105 P.3d 1158, 1160 (2005); State v. Riggs, 189 Ariz. 327,

333, 942 P.2d 1159, 1165 (1997).

¶8 Section 13-3967(D) provides in pertinent part:

[A] judicial officer may impose any of the following conditions
on a person who is released . . . on bail:

....

3. Require the deposit with the clerk of the court of
cash or other security, such deposit to be returned upon the
performance of the conditions of release.

....

5
 6. Impose any other conditions deemed reasonably
necessary to assure appearance as required . . . .

¶9 Rule 7.3(b), Ariz. R. Crim. P., provides in pertinent part:

An order of release may include the first one or more of
the following conditions reasonably necessary to secure a
person’s appearance:

....

(4) Any other condition not included in (5) or (6) which
the court deems reasonably necessary;

(5) Execution of a secured appearance bond . . . .

“Secured appearance bond” is defined in Rule 7.1(c), Ariz. R. Crim. P., as follows:

A “secured appearance bond” is an appearance bond
secured by deposit with the clerk of security equal to the full
amount thereof.

“Security” is defined in Rule 7.1(d) in pertinent part as follows:

“Security” is cash, a surety’s undertaking, or any
property of value, deposited with the clerk to secure an
appearance bond.

¶10 We first note that § 13-3967(D) and Rule 7.3(b) are couched in terms of what

“a judicial officer may impose” and what “[a]n order of release may include.” By their

express terms, those provisions affirmatively grant authority to trial courts to determine and

fashion appropriate conditions for a defendant’s release on bail. Neither the statute nor the

rule creates or extends pretrial release rights or various alternatives for defendants in posting

bail. For example, § 13-3967(D) does not state that a defendant who seeks release on bail

6
may, at his or her option, post cash or other security. Rather, the statute prescribes the

conditions, including cash, that “a judicial officer may impose” on a person released on bail.

§ 13-3967(D)(3).

¶11 Moreover, the language at issue here is not ambiguous. Neither the applicable

statute nor procedural rules expressly prohibit cash-only bail. To the contrary, each

provides that a defendant’s pretrial release may be conditioned on the deposit of cash. § 13-

3967(D)(3); Ariz. R. Crim. P. 7.1(c), (d). And, if that were not clear enough, both the

statute and procedural rule specifically extend to the court discretion to impose any

condition not expressly listed therein if deemed “reasonably necessary.” § 13-3967(D)(6);

Ariz. R. Crim. P. 7.3(b)(4). Contrary to Fragoso’s suggestion that § 13-3967 “is

impermissibly indefinite or uncertain,” we find the statute clear and definitive, expressly

authorizing a court to impose as a required condition of bail a “deposit . . . of cash” with the

clerk of court.2 § 13-3967(D)(3). And, because the statute is not ambiguous, the rule of

2
We acknowledge that some courts have held that their court rules did not permit
cash- only bail. State ex rel. Jones v. Hendon, 609 N.E.2d 541, 543-44 (Ohio 1993) (court
rule authorizing as condition of release the deposit of cash did not “vest[] discretion in a
judge to impose a ‘cash only’ bond,” but rather, “constitutes but a single condition which
the judge may impose—the condition of a bond”); City of Yakima v. Mollett, 63 P.3d 177,
180 (Wash. Ct. App. 2003) (cash-only bail not authorized because court rules did not “set
[that] out as a discrete condition of release”). We conclude, however, that even if we were
to accept Fragoso’s argument that Rule 7, Ariz. R. Crim. P., does not explicitly grant a court
power to require cash-only bail, it implicitly permits that and certainly does not prohibit it.
And, to the extent Hendon and Mollett might suggest that our statute does not authorize
cash-only bail, we disagree.

7
lenity on which Fragoso relies does not apply. See State v. Fell, 203 Ariz. 186, ¶ 10, 52

P.3d 218, 221 (App. 2002).

¶12 We therefore conclude from the plain language of the statute and rule that

their drafters did not intend to preclude the possibility of cash-only bail as a pretrial release

condition in appropriate circumstances. In view of the broad, disjunctive language in those

provisions, had their drafters intended to prohibit such a condition, they “presumably would

have clearly said so.” State v. Henry, 205 Ariz. 229, ¶ 16, 68 P.3d 455, 459 (App. 2003).

We also observe that, although the specific legal question before us apparently is of first

impression, Arizona decisions repeatedly have involved cases in which bail was either set

or posted in cash. See, e.g., State v. Urbauer, 109 Ariz. 584, 585, 514 P.2d 717, 718

(1973) (noting “bail was set at $500,000.00 cash”); State v. Gutierrez Barajas, 153 Ariz.

511, 512, 738 P.2d 786, 787 (App. 1987) (cash appearance bond posted); State v. Bailey,

120 Ariz. 399, 401, 586 P.2d 648, 650 (App. 1978) (same).

¶13 Having found no prohibition in either § 13-3967 or Rule 7 against the

respondent judge’s order, we next turn to Fragoso’s constitutional argument. A statute or

rule, of course, “cannot circumvent or supplant . . . constitutional requirements.” United

States Currency, 183 Ariz. at 213, 902 P.2d at 356. Relying on several out-of-state cases,

Fragoso asserts that “[a] ‘cash only’ bond contradicts Arizona’s [constitutional] guarantee

of bail through ‘sufficient sureties.’” Ariz. Const. art. II, § 22(A). We endeavor to

harmonize statutes and court rules with the Arizona Constitution, see Aitken v. Industrial

8
Commission, 183 Ariz. 387, 389, 904 P.2d 456, 458 (1995), avoiding any unconstitutional

construction. Larsen v. Nissan Motor Corp. in U.S.A., 194 Ariz. 142, ¶ 13, 978 P.2d 119,

124 (App. 1998). We review constitutional issues de novo, including the legal question of

whether a statute or a procedural rule violates the state constitution. See State v. Casey, 205

Ariz. 359, ¶ 8, 71 P.3d 351, 354 (2003); United States Currency, 183 Ariz. at 211, 902

P.2d at 354. In our view, the provision for cash-only bail in § 13-3967(D) and Rule 7 does

not offend the Arizona Constitution.3

¶14 The language in article II, § 22(A), that “[a]ll persons charged with crime shall

be bailable by sufficient sureties,” also appears in other state constitutions, many of which

contain the same or similar “bailable by sufficient sureties” provision. See State v. Brooks,

604 N.W.2d 345, 350 (Minn. 2000) (noting that over two-thirds of state constitutions

contain the equivalent provision); 8A Am. Jur. 2d Bail and Recognizance § 59, at 346

(1997) (state “[c]onstitutional provisions . . . generally provide that [non-excepted] persons

will be bailable by ‘sufficient sureties’”). We acknowledge a split in authority among state

appellate courts that have addressed whether a constitutional guarantee of bail by sufficient

sureties permits cash-only bail. Compare State v. Briggs, 666 N.W.2d 573 (Iowa 2003)

3
“There is a strong presumption that a statute is constitutional, and the party
challenging it has the burden of establishing beyond a reasonable doubt that it is invalid.”
State v. Klausner, 194 Ariz. 169, ¶ 13, 978 P.2d 654, 657 (App. 1998). Although Fragoso
does not expressly challenge the constitutionality of either § 13-3967 or Rule 7, he
implicitly suggests that any interpretation of that statute or rule different from his own would
run afoul of our constitution’s “sufficient sureties” clause. Ariz. Const. art. II, § 22(A).

9
(cash-only bail constitutionally permissible), and Ex parte Singleton, No. CR-03-1981,

2004 WL 2676659, at *4 (Ala. Crim. App. Nov. 24, 2004) (same), with Brooks, 604

N.W.2d at 354 (cash-only bail offends state constitution), and State ex rel. Jones v.

Hendon, 609 N.E.2d 541 (Ohio 1993) (same). Fragoso relies heavily on the latter two

cases, but we are not persuaded that their reasoning compels the same conclusion about the

Arizona Constitution.

¶15 In Hendon, the court relied on the fact that the Ohio constitutional provision

was silent on the form of bail guaranteed and that the relevant procedural rule did not

specifically provide for cash-only bail. 609 N.E.2d at 543-44. As discussed above,

however, Arizona’s statute and rule do so provide. The court in Brooks examined the

history of bail from medieval England to the evolution of the sufficient sureties clause in the

Pennsylvania colonial constitution in the mid-1680s and the ensuing appearance of the

sufficient sureties clauses in the bail provisions in the vast majority of state constitutions.

The Brooks majority concluded that the history of this constitutional provision relating to

bail shows that it was intended to protect the rights of the accused to be free from

incarceration before being proved guilty, that the term “sufficient sureties” historically

referred to the right to bail by a third person who guarantees to the court that the accused

will appear for case proceedings, that the term never encompassed a cash-only concept, and

that a cash-only bail condition therefore offended the Minnesota Constitution. 604 N.W.2d

at 348-54.

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¶16 We agree with the dissent in Brooks, however, that “[t]he term ‘sufficient

sureties’ certainly does not prohibit cash only bail.” Id. at 355 (Stringer, J., dissenting); see

also Briggs, 666 N.W.2d at 582 (“sufficient sureties” language creates “a right to access a

surety of some form” but “does not indicate that the framers intended that a person should

be bailable by any surety without limit”). In addition, Fragoso has cited no authority

suggesting that the drafters of the Arizona Constitution intended article II, § 22 to

incorporate the customs or conventions pertaining to bail from colonial America or early

English law, nor has our independent research discovered any.4 To the contrary, it is

conceivable that bail by cash (or personal property of value such as a horse or a firearm)

might have been the only practical form of bail in Arizona when our constitution was

adopted in 1910, particularly because of the transient nature of the population and the vast

rural areas where a secured bond or a traditional, formal, third-party surety arrangement

would not have been feasible.

¶17 More importantly, the lone case addressing the meaning of the Arizona

Constitution’s sufficient sureties clause supports the state’s interpretation of it. In Rendel,

4
See generally The Records of the Arizona Constitutional Convention of 1910 (John
S. Goff ed., 1991); Gordon Morris Bakken, The Arizona Constitutional Convention of
1910, 1978 Ariz. St. L.J. 1 (1978); John D. Leshy, The Making of the Arizona
Constitution, 20 Ariz. St. L.J. 1 (1988); Stanley G. Feldman and David L. Abney, The
Double Security of Federalism: Protecting Individual Liberty Under the Arizona
Constitution, 20 Ariz. St. L.J. 115 (1988); Paul Marcus, State Constitutional Protection
for Defendants in Criminal Prosecutions, 20 Ariz. St. L.J. 151 (1988).

11
our supreme court stated: “We are of the opinion that the words ‘sufficient sureties’ mean,

at a minimum, that there is reasonable assurance to the court that if the accused is admitted

to bail, he will return as ordered until the charge is fully determined.” 106 Ariz. at 237, 474

P.2d at 828. Thus, the court essentially recognized that the sufficient sureties clause in

Arizona’s Constitution simply confirms the primary purpose of bail—to ensure a defendant’s

appearance to answer to the charges and submit to any ultimate judgment of the court. See

Gusick v. Boies, 72 Ariz. 309, 311, 234 P.2d 430, 431 (1951) (“[B]ail is exacted for the

sole purpose of securing the attendance in court of the defendant.”); State v. Nunez, 173

Ariz. 524, 526, 844 P.2d 1174, 1176 (App. 1993) (“The primary purpose of an appearance

bond is to assure the defendant’s presence at the time of trial.”).

¶18 We have no basis for concluding that the drafters of our constitution intended

to foreclose a cash-only restriction as one of the conditions by which that purpose could be

attained. In fact, the use of the word “sufficient” in article II, § 22(A) suggests that a judge

or magistrate has the discretion to impose various conditions on the form of bail sufficient

to meet that purpose. See Briggs, 666 N.W.2d at 582 (“[B]y using the word sufficient in

the sufficient sureties clause[,] . . . the framers carved out a measure of discretion for the

person overseeing the bailing process.”).

¶19 Nor are we persuaded by the semantic argument that conditions of cash-only

bail violate Arizona’s Constitution because they do not constitute or qualify as “sureties.”

Ariz. Const. art. II, § 22(A); see Webster’s Third New Int’l Dictionary 2300 (1971)

12
(definition of “surety” includes “a pledge or other formal engagement given for the

fulfillment of an undertaking”); Black’s Law Dictionary 1483 (8th ed. 2004) (definition of

“surety” includes “a formal assurance; esp., a pledge, bond, guarantee, or security given for

the fulfillment of an undertaking”); The Concise Oxford Dictionary of Current English

1402 (9th ed. 1995) (definition of “surety” includes “money given as a guarantee that

someone will do something”).5

¶20 Our decision is further informed by the full, current text of article II, § 22 of

the Arizona Constitution. Arizona voters approved Proposition 103 in the November 5,

2002, general election. 2003 Ariz. Sess. Laws § 1518. That proposition amended article

II, § 22, in part by adding a new subsection (B), which provides:

The purposes of bail and any conditions of release that
are set by a judicial officer include:

5
Although the dissent questions any resort to “contemporary dictionary entries for
‘surety,’” ¶ 28, infra, we note that long before Arizona’s Constitution was adopted, a well-
known dictionary did not limit the definition of “surety” to a third person’s engagement to
answer for another’s appearance in court. Rather, it included “[t]he state of being sure” and
“security for payment.” Noah Webster, An American Dictionary of the English Language
1332 (1868). Other dictionaries in the early 1900’s included similar definitions of “surety.”
2 A Standard Dictionary of the English Language 1809 (Isaac K. Funk ed., 1910)
(including in its definitions, “[a] pledge of money deposited or of credit given to secure
against loss or damage; security for payment or performance”); The Concise Oxford
Dictionary of Current English 885 (1912) (including “certainty” in its definitions). And,
although the dissent seeks to avoid giving the term “surety” a “technical meaning,” ¶ 28,
infra, we question whether the dissent’s reliance on an early edition of Black’s Law
Dictionary achieves that objective, particularly when only fourteen out of fifty-two
delegates to the Arizona constitutional convention were attorneys. See John D. Leshy, The
Arizona State Constitution 6 (1993).

13
 1. Assuring the appearance of the accused.

2. Protecting against the intimidation of witnesses.

3. Protecting the safety of the victim, any other person
or the community.

Subsection (B) is no less a part of our constitution, and no less important, than subsection

(A).

¶21 Moreover, this most recent amendment confirms and amplifies Rendel’s

statement about the meaning of “sufficient sureties” in this context. As article II, § 22(B)

now makes clear, the primary, if not paramount, purpose of bail under the Arizona

Constitution is to guarantee a defendant’s appearance in court while protecting victims,

witnesses, and the public;6 the amount of bail and the conditions of release set by a judicial

officer are the tools by which those objectives can be effectuated. According a judicial

officer the discretion to impose a cash-only condition of release as one such tool is not only

statutorily authorized but also entirely consistent with article II, § 22 of our state

constitution.

¶22 Finally, nothing in this decision should be interpreted as blanket authority for

cash-only bail. A trial court’s discretion to set conditions of bail is not unfettered. See

Gusick v. Boies, 72 Ariz. 233, 237-38, 233 P.2d 446, 448-49 (1951) (trial court abused

6
That purpose, now expressly stated in Arizona’s Constitution, materially
distinguishes State v. Brooks, 604 N.W.2d 345, 350 (Minn. 2000), in which the court
construed the sufficient sureties clause in Minnesota’s Constitution as “intended to protect
the accused rather than the courts.”

14
discretion in setting bail amount far above what defendant could possibly raise). A judicial

officer setting bail must “impose the least onerous condition or conditions . . . which will

reasonably assure the person’s appearance.” Ariz. R. Crim. P. 7.2(a). But Fragoso does not

contend that the cash-only condition was not “reasonably necessary to secure [his]

appearance.” Ariz. R. Crim. P. 7.3(b). Therefore, any issue of whether the respondent judge

abused his discretion in setting Fragoso’s bail at $50,000 cash is not posed here, nor is the

record before us complete enough to answer that question even had Fragoso raised it. We

hold only that cash-only bail is not prohibited by, but rather, in appropriate circumstances

is permissible under, article II, § 22 of the Arizona Constitution, § 13-3967, and Rule 7.

CONCLUSION

¶23 The respondent judge acted within his legal authority in denying Fragoso’s

motion to set a secured appearance bond. Accordingly, although we accept jurisdiction of

Fragoso’s special action, we deny relief.

____________________________________
JOHN PELANDER, Chief Judge

CONCURRING:

____________________________________
PHILIP G. ESPINOSA, Judge

15
F L Ó R E Z, Presiding Judge, dissenting.

¶24 I respectfully dissent. Although I agree that special action jurisdiction is

appropriate for the reasons stated in the majority opinion, I would grant relief because, in

my view, cash-only bail violates the right to bail by sufficient sureties guaranteed by article

II, § 22(A) of the Arizona Constitution. Moreover, I do not agree that the relevant

procedural rules and statute clearly and unambiguously permit a cash-only restriction on

bail; I would construe them otherwise, in harmony with my interpretation of the

constitutional provision.

¶25 Article II, § 22 of the Arizona Constitution, as adopted in 1910, provided in

pertinent part: “All persons charged with crime shall be bailable by sufficient sureties .”

The Records of the Arizona Constitutional Convention of 1910, 1401 (John S. Goff ed.,

1991). That language, now in article II, § 22(A), has remained in effect since. I disagree

with the majority’s construction of this provision that the word “surety,” as used in this

provision, can encompass cash-only bail.

¶26 In construing a provision of the Arizona Constitution, our primary goal is to

effectuate the intent of the framers. McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 645

P.2d 801 (1982). “To this end, we first examine the plain language of the provision.” Jett

v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). “‘[W]hen a constitutional

provision is clear on its face and is logically capable of only one interpretation,’ we simply

16
follow that text.” Ariz. State Democratic Party v. State, 209 Ariz. 103, ¶ 8, 98 P.3d 214,

218 (App. 2004), quoting Ward v. Stevens, 86 Ariz. 222, 228, 344 P.2d 491, 495 (1959).

¶27 As the majority notes, many states have the exact or substantially similar

“sufficient sureties” language in their constitutions. In State v. Brooks, 604 N.W.2d 345

(Minn. 2000), the Minnesota Supreme Court addressed whether cash-only bonds were

permissible under the Minnesota Constitution, which contains an equivalent sufficient

sureties provision. In an opinion that traced the history of the phrase in detail, the Brooks

court examined the history of bail from medieval England to the evolution of the sufficient

sureties clause in the precursor to the Pennsylvania colonial constitution in 1682 and the

resulting appearance of the sufficient sureties clauses in the bail provisions in approximately

two-thirds of state constitutions. Similarly, in State v. Briggs, 666 N.W.2d 573 (Iowa

2003), the Iowa Supreme Court undertook a similar historical analysis of the phrase

“sufficient sureties,” which also appears in Iowa’s constitutional bail provision. In the

absence of any evidence to the contrary, I can only deduce that Arizona’s sufficient sureties

clause shares this same provenance. No purpose would be served by repeating these

analyses, save to note both opinions are consistent in reporting that the word “surety” used

in the context of bail referred historically to a third person who guaranteed the appearance

of the accused and who would be answerable if the accused did not appear, a role that

evolved into the professional bail bondsperson. This conclusion is confirmed in 8A Am. Jur.

17
2d Bail and Recognizance § 51 (1997), which sets forth the nature and role of a surety in

the bail process:

Generally, in a bail bond, the surety acts as a guarantor
of the defendant’s appearance under the risk of forfeiture of the
bond. The surety guarantees that the defendant will appear at
the specific time and place and if the defendant fails to appear
at the specified time and place, the surety is absolutely indebted
to the state for the amount of the bond.

¶28 I am not persuaded by the majority’s reliance on contemporary dictionary entries

for “surety” that, in addition to “third person” definitions consistent with that quoted above,

contain definitions that can arguably be read to include cash. First, it is not clear that those

definitions of surety would be appropriate when the term is used in a constitutional

provision pertaining strictly to bail. “‘[T]he law uses familiar legal expressions in their

familiar legal sense.’” Bradley v. United States, 410 U.S. 605, 609, 93 S. Ct. 1151, 1154,

35 L. Ed. 2d 528, 532 (1973), quoting Henry v. United States, 251 U.S. 393, 395, 40 S.

Ct. 185, 186, 64 L. Ed. 2d 322, 323 (1920). Second,

[i]n determining the meaning of words used in a . . . constitutional
provision, we must take into consideration the surrounding
circumstances at the time when they were used, and they should be
given a definition consonant with ideas then prevailing, rather than
a technical meaning which may have attached to them perhaps a
generation or more after they were first used.

Maricopa County Mun. Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz.

65, 77, 4 P.2d 369, 374 (1931), modified on rehearing, 39 Ariz. 367, 7 P.2d 254 (1932).

Bearing these principles in mind, and to the extent this issue can be resolved by consulting

18
a dictionary, I find more persuasive the only two definitions for “surety” found in the edition

of Black’s published the same year our constitution was adopted:

SURETY. A surety is one who at the request of another,
and for the purpose of securing to him a benefit, becomes
responsible for the performance by the latter of some act in
favor of a third person, or hypothecates property as security
therefor.

A surety is defined as a person who, being liable to pay a
debt or perform an obligation, is entitled, if it is enforced against
him, to be indemnified by some other person who ought himself
to have made payment or performed before the surety was
compelled to do so.

Black’s Law Dictionary 1127 (2d ed. 1910) (citations omitted).

¶29 I am thus convinced that bail by surety at the turn of the last century had but

one meaning: bail through a third person who assumes legal responsibility for the

appearance of an accused. Indeed, that is the meaning of the term our supreme court

employed in the sole Arizona case interpreting our constitutional provision (and the primary

Arizona case relied on by the majority), Rendel v. Mummert, 106 Ariz. 233, 236, 474 P.2d

824, 827 (1970): “Sureties on bail or recognizance may at any time take their principal into

custody for the purpose of surrendering him in exoneration of their liability.”

¶30 The framers of article II, § 22 were free to use more general terms, such as

“guarantees,” “assurances,” or “securities,” but chose instead the word “sureties,” a term of

art with a far more specific meaning. Having seen nothing even remotely suggesting that the

Arizona framers intended that the phrase have a different meaning in this state, I can only

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conclude that the Arizona Constitution guarantees a defendant the right to post bail through

a secured bond posted by a bondsperson. In my view, then, a cash-only restriction on bail

violates the right to bail by sufficient sureties guaranteed by the Arizona Constitution.

¶31 I do not disagree with the majority that “the primary purpose of bail [is] to

ensure a defendant’s appearance to answer to the charges and submit to any ultimate

judgment of the court.” Supra ¶ 17; see Rendel. I also acknowledge that this tenet has

recently been incorporated into our constitution, along with language establishing that bail

also serves to protect victims, witnesses, and others who might be affected by a defendant’s

pretrial release. See Ariz. Const. art. II, § 22(B). But those principles are perfectly

compatible with my interpretation of article II, § 22(A). In guaranteeing bail by sufficient

sureties, the provision recognizes a judicial officer’s discretion to set the amount of the bond

at a level sufficient to effectuate those ends, limited only by the rarely reached constitutional

protections against excessive bail.7 The sufficient sureties provision does, however, limit the

judicial officer’s discretion to choose a particular form the bond must take, a decision that

could have the practical effect of making bail inaccessible to a defendant who could

otherwise post bail. As the Ohio Supreme Court found in addressing the same issue raised

by its court rule and equivalent constitutional provision:

7
U.S. Const. amend. VIII; Ariz. Const. art. II, § 15; see also Soto v. Superior Court,
190 Ariz. 450, 455, 949 P.2d 539, 544 (App. 1997) (“Bail is not unconstitutionally
excessive merely because a defendant has no means to pay it.”).

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 Once a judge . . . sets the amount of bond, we find no legitimate
purpose in further specifying the form of bond which may be
posted. Indeed, the only apparent purpose in requiring a “cash-
only” bond to the exclusion of the other forms provided in [the
procedural rule] is to restrict the accused’s access to a surety
and, thus, to detain the accused in violation of [the Ohio
constitutional right to bail by sufficient sureties].

State ex rel. Jones v. Hendon, 609 N.E.2d 541, 544 (Ohio 1993).

¶32 Because of my resolution of the constitutional issue, I also dissent from the

majority’s holding that A.R.S. § 13-3967(D) and Rule 7, Ariz. R. Crim. P., permit a judicial

officer to place a cash-only restriction on bail, constructions I would find unconstitutional.

Although I find the majority’s construction of the statute and rule reasonable, I do not agree

that they clearly and unambiguously permit a cash-only restriction on bail.

¶33 We have a duty to construe statutes and rules in a constitutional manner, and

when confronted with one interpretation that may be constitutional and one that may not,

we adopt a construction that avoids a constitutional conflict unless that construction is

plainly contrary to the drafters’ intent. See Riepe v. Riepe, 208 Ariz. 90, 91 P.3d 312 (App.

2004). “Indeed, if a statute can be constitutionally construed, we must adopt that

construction.” Emmett McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, ¶ 4, 58

P.3d 39, 41 (App. 2002). Bearing that in mind, as well as the rules of construction for

statutes and rules accurately set forth in the majority opinion, supra ¶ 7, I would construe

Rule 7 and § 13-3967(D) as follows.

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¶34 Rule 7.3(b) sets forth six nonmandatory conditions that may be placed on an

order of release if “reasonably necessary to secure a person’s appearance.” One of these

conditions is the “[e]xecution of a secured appearance bond.” Ariz. R. Crim. P. 7.3(b)(5).

I agree that Rule 7.1(c) and (d) allow a secured appearance bond to be secured by cash. But

I disagree that Rule 7.1 gives a trial court authority to make cash a condition of bail; Rule

7.1 is merely a definitional section. Rule 7.3(b) sets forth the permissible conditions of

release that may be imposed, one of which is a secured appearance bond. An equally

justifiable reading is that these rules grant a trial court the authority to condition a

defendant’s release on the posting of a secured appearance bond, set by the court at an

appropriate amount, but permit the defendant to post that bond in any of the three

forms—cash, property, or a surety’s undertaking—provided in Rule 7.1(d).

¶35 I also disagree that Rule 7.3(b)(4), which provides that a release order may

include “[a]ny other condition not included in (5) or (6),” gives a trial court the authority

to impose a cash-only condition on bail. The comment to Rule 7.3(b) makes clear that the

conditions set forth in that rule are prioritized numerically in order of imposition and

severity and that the kinds of conditions contemplated under subsection (4) should be less

onerous than a fully secured appearance bond under subsection (5). As the facts of this case

illustrate, a release bond conditioned on posting cash in full can be more severe than a

release bond secured by property or a surety’s undertaking. Moreover, subsection (4) is

expressly limited to conditions outside subsection (5), which governs release conditioned

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on a secured appearance bond. Because cash-in-full bail is a form of secured appearance

bond, see Rule 7.1(c) and (d), subsection (4) cannot encompass such a condition.

¶36 This construction of Rule 7 is consistent with my interpretation of article II,

§ 22(A); it is also consistent with the appearance bond form adopted by our supreme court.

Ariz. R. Crim. P. Form 7, 17 A.R.S. The form features a section in which the amount of the

bond set by the judicial officer is entered but then alternative sections for either (1) the

defendant to deposit cash or property in the full value of the bond, or (2) the defendant’s

surety to assume the obligation for the bond. Notably, in both the rule and the form, the

word “surety” is always used in the traditional sense and can never be read to mean “cash.”

¶37 I would similarly construe the statute. Section 13-3967(D) also sets forth six

enumerated release conditions a judicial officer may impose, including the condition in

subsection (3): “Require the deposit with the clerk of the court of cash or other security,

such deposit to be returned upon the performance of the conditions of release.” Although

this language might be stronger and more supportive of the majority’s position than the

language of Rule 7, I do not agree that this provision unambiguously authorizes cash-only

bail, especially in light of the incongruent construction of the rule. See Groat v. Equity Am.

Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (App. 1994) (“Rules of procedure and

statutes are read in conjunction with each other and harmonized whenever possible.”).

¶38 Section 13-3967(D)(3) authorizes a judicial officer to require a deposit, the

form of which can be “cash or other security.” It is not clear that the statute gives a judicial

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officer discretion to specify the form of the deposit; an equally plausible construction is that

the statute merely sets forth the acceptable forms of deposit a defendant may post. The

Washington Court of Appeals addressed virtually the same question in the context of its

court rule, which is constructed similarly to our statute—listing several enumerated

conditions of release, one of which contains as alternatives a secured bond or cash—and

concluded: “If the rule drafters intended to authorize ‘cash only’ bail, they could have

easily set it out as a discrete condition of release.” City of Yakima v. Mollett, 63 P.3d 177,

180 (Wash. Ct. App. 2003). Similarly, our legislature could have permitted cash only bail

as a discrete condition of release, but did not.

¶39 As for the majority’s conclusion that cash-only bail is authorized under § 13-

3967(D)(6), which provides that a trial court may “[i]mpose any other condition deemed

reasonably necessary to assure appearance as required,” the Mollett court addressed the

same argument based on a similar ultimate catch-all provision in the Washington rule. The

Mollett court rejected that argument as well, again reasoning that a cash-only provision

would have been expressly enumerated had it been an intended option. I would construe

§ 13-3967(D)(6) in the same manner.

¶40 The Mollett court’s construction of the Washington rule is best understood in

the context of the issues facing that court. Although a state constitutional challenge had also

been raised to the cash-only bail imposed in that case, the court expressly avoided the

constitutional issue by finding that the rule did not permit cash-only bail. The sufficient

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sureties provision in the Washington Constitution is identical to Arizona’s. See Wash.

Const. art. I, § 20 (“All persons charged with crime shall be bailable by sufficient sureties

. . . .”); see also Westerman v. Cary, 892 P.2d 1067 (Wash. 1994). The unstated lesson in

the Mollett holding, then, is that a contrary construction, such as that the majority adopts

here, would have implicated Washington’s sufficient sureties clause. The majority of the

Arizona Declaration of Rights, including article II, § 22, was taken verbatim or nearly

verbatim from the Washington Constitution. Stanley G. Feldman and David L. Abney, The

Double Security of Federalism: Protecting Individual Liberty Under the Arizona

Constitution, 20 Ariz. St. L.J. 115, 120-21 (1988). I therefore find the reasoning in Mollett

particularly compelling. See Phelps v. Firebird Raceway, Inc., 207 Ariz. 149, ¶ 12, 83 P.3d

1090, 1093 (App. 2004) (Oklahoma’s experience with specific legal doctrine “especially

enlightening” when relevant state constitutional provisions share identical language).

¶41 I would find that neither Rule 7 nor § 13-3967(D) permits a cash-only

restriction on bail, although they certainly permit a defendant to be released on bail who

satisfies the bond amount with cash in full. Such a construction of the rule and statute

would be compatible with my interpretation of article II, § 22(A).

____________________________________
M. JAN FLÓREZ, Presiding Judge

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