Hiskett v. Hon. lambert/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT LOUIS HISKETT, Petitioner,

v.

THE HONORABLE RICK LAMBERT, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MOHAVE,
Respondent Judge,

STATE OF ARIZONA ex rel. MATTHEW J. SMITH, MOHAVE COUNTY
ATTORNEY, Real Party in Interest.

No. 1 CA-SA 19-0119
FILED 10-1-2019

Petition for Special Action from the Superior Court in Mohave County
No. CR-2018-01854
The Honorable Richard D. Lambert, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART

COUNSEL

American Civil Liberties Union Foundation of Arizona, Phoenix
By Jared G. Keenan, Kathleen E. Brody, Marty Lieberman
Co-Counsel for Petitioner

Aspen, Watkins & Diesel, P.L.L.C., Flagstaff
By Michael J. Wozniak
Co-Counsel for Petitioner
Mohave County Attorney’s Office, Kingman
By Megan McCoy, Jacob Cote
Counsel for Real Party in Interest

Pima County Public Defender’s Office, Tucson
By David J. Euchner
Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

Coconino County Public Defender’s Office, Flagstaff
By Sandra L.J. Diehl
Counsel for Amicus Curiae Arizona Public Defender Association

Arizona Attorney General’s Office, Phoenix
By Rusty D. Crandell, Anthony R. Napolitano
Counsel for Amicus Curiae Arizona Attorney General

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Chief Judge Peter B. Swann joined.

W I N T H R O P, Judge:

¶1 Arizona Revised Statutes (“A.R.S.”) section 13-3967(E)(1)
mandates that persons charged with certain bailable sex offenses be subject
to electronic monitoring “where available.” In this special action, we
address a question raised but not directly answered by § 13-3967(E)(1):
Must the defendant pay the cost of that pretrial electronic monitoring? We
answer that question in the negative, and we also address other issues
raised by the parties.

¶2 Robert Louis Hiskett (“Petitioner”), whose criminal charges
trigger the application of A.R.S. § 13-3967(E)(1), challenges the superior
court’s pretrial release orders requiring him to pay for electronic location
monitoring and later requiring him to post bond in the amount of $100,000
or be jailed pending trial. Petitioner argues the cost of pretrial electronic
location monitoring must not be imposed on pretrial defendants. He also
argues the superior court failed to properly determine whether such
monitoring was “available” under § 13-3967(E)(1) and failed to conduct the
proper inquiry regarding the bond. For the following reasons, we accept

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Opinion of the Court

special action jurisdiction, grant relief in part, and direct the superior court
to conduct further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3 Petitioner is facing three counts of sexual conduct with a
minor under fifteen years of age, each a class two felony and a dangerous
crime against children.

¶4 In December 2018, the superior court released Petitioner on
his own recognizance pending trial. Given the nature of the charges, A.R.S.
§ 13-3967(E)(1) required the court to impose “[e]lectronic monitoring where
available.” The court ordered Petitioner “to wear a GPS monitoring device
within 48 hours of [his release] and [be] responsible for all costs associated
with it.”

¶5 Petitioner began wearing an electronic location monitoring
device from a monitoring service provider that contracted with the Mohave
County probation department. Petitioner was required to make a $150
down payment and pay a charge of more than $10 per day or approximately
$400 per month for the monitoring device. Because he was released on his
own recognizance, Petitioner was able to maintain his job, and the court
approved his travel to California for work.

¶6 In April 2019, contending he could not afford the continued
monthly cost of the electronic monitoring, Petitioner moved to modify his
release conditions. Petitioner argued Mohave County must bear the cost of
pretrial electronic monitoring services ordered under A.R.S. § 13-3967(E)(1),
and that the county could not pass that cost onto him. He also argued that
subsection (E)(1) is unconstitutional, facially and as applied, under both the
United States and Arizona constitutions.

¶7 At the May 16, 2019 hearing on the motion, Petitioner was
represented by defense counsel and an attorney from the American Civil
Liberties Union (“ACLU”), and the State was represented by an attorney
from the Mohave County Attorney’s Office. Petitioner argued that (1) the
categorical requirement of electronic monitoring as a pretrial condition for
individuals charged with specified sexual offenses violates the state and
federal constitutional protections against unreasonable searches, excessive
bail, and the guaranteed protection of due process, and (2) even if the
statute is constitutional, Mohave County is required to pay for the
monitoring because the statute does not expressly authorize the county to
impose that cost onto a pretrial defendant. The State took no position and
offered no argument or evidence related to the motion.

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Opinion of the Court

¶8 Despite receiving no evidence to support its subsequent
ruling, the superior court determined that, under subsection (E)(1),
electronic location monitoring was not “available” in Mohave County
because the county was unable and/or unwilling to bear that expense, and
it was impractical for the county to seek reimbursement as part of
sentencing if Petitioner is convicted. The court also determined the
unavailability of government-paid monitoring constituted a “change in
circumstances,” revoked the own-recognizance release order, and imposed
a $100,000 secured bond. Because Petitioner could not post that bond, the
court took him into custody, and he then filed this petition for special action
asserting the court had abused its discretion by changing his release status
and/or by not addressing his constitutional arguments.

¶9 After Petitioner filed his petition in this court, the superior
court issued a May 30, 2019 order staying the entire criminal prosecution
pending resolution of the petition. On June 7, we issued an order vacating
the requirement that Petitioner post a $100,000 bond and vacating the
superior court’s order removing Petitioner from electronic monitoring
status. This effectively returned Petitioner to own-recognizance release
with monitoring status and required Petitioner to pay the cost of the
monitoring service pending resolution of the special action.1 We also
vacated the superior court’s May 30 order, noting that the trial proceedings
may continue unabated by the special action proceedings. Finally, we
ordered supplemental briefing by the parties and invited other interested
parties to file amicus briefs.2

1 We have since amended this order to remove the condition that
Petitioner bear the pretrial cost of electronic location monitoring.

2 Our order directing supplemental briefing required the parties to
address several specific issues. Without notifying this court, Mohave
County elected to not file a supplemental brief or otherwise respond in
writing to the several issues identified in our order. Mohave County’s non-
compliance with this court’s order, and its failure to advise the court of its
apparently deliberate decision not to comply, is unacceptable and
implicates several rules of professional conduct. See Ariz. R. Sup. Ct. 42, ER
1.3 (diligence), 3.3 (candor toward the tribunal), 8.4(d) (misconduct by
engaging in conduct prejudicial to the administration of justice); see also
Ariz. R. Sup. Ct. 41(c) (maintaining the respect due to courts of justice and
judicial officers).

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SPECIAL ACTION JURISDICTION

¶10 Because the pretrial release issues raised here will become
moot if not reviewed by special action, Petitioner has no equally plain,
speedy, and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); Haag
v. Steinle, 227 Ariz. 212, 214, ¶¶ 4-5 (App. 2011). Additionally, the petition
raises legal questions of first impression and statewide importance that
could recur in other cases and evade appellate review.3 See id.; see also State
v. Bernini ex rel. Pima Cty., 230 Ariz. 223, 225, ¶ 5 (App. 2012) (citing State ex
rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4 (App. 2002) (“Special action
jurisdiction is appropriate in matters of statewide importance, issues of first
impression, cases involving purely legal questions, or issues that are likely
to arise again.”)). Accordingly, we accept special action jurisdiction.

ANALYSIS

I. The Cost Burden of A.R.S. § 13-3967(E)

¶11 We first address whether the cost of pretrial electronic
location monitoring may be imposed upon a defendant. Subsection (E) of
A.R.S. § 13-3967 provides that, in addition to other conditions of release,

the judicial officer shall impose . . . the following condition[]
on a person who is charged with a felony violation of [A.R.S.
§ 13-3551 et seq.] . . . and who is released on his own
recognizance or on bail:

1. Electronic monitoring where available.

¶12 Whether subsection (E)(1) permits a court to impose pretrial
electronic monitoring costs on a defendant is a matter of statutory
interpretation, which we review de novo. State v. Kearney ex rel. Pima Cty.,
206 Ariz. 547, 549, ¶ 5 (App. 2003). In interpreting a statute, we look first to
the words of the statute. Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377
(1985). If the language is clear and unambiguous, we apply it without
turning to other methods of statutory interpretation. Hayes v. Cont’l Ins. Co.,
178 Ariz. 264, 268 (1994). If more than one rational interpretation of a statute
exists, however, we employ tools of statutory construction to discern the

3 At least two other pretrial defendants in Mohave County this year
have challenged mandatory electronic location monitoring as a pretrial
release condition under A.R.S. § 13-3967(E)(1). See Martinez v. Sipe ex rel.
Mohave County, 1 CA-SA 19-0034 (order filed Feb. 20, 2019); Brown v. Sipe ex
rel. Mohave County, 1 CA-SA 19-0035 (order filed Feb. 20, 2019).

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proper interpretation. Id. We will not read into a statute anything not
within the clear intent of the legislature as indicated by the statute itself, nor
will we “inflate, expand, stretch[,] or extend a statute to matters not falling
within its express provisions.” City of Tempe v. Fleming, 168 Ariz. 454, 457
(App. 1991) (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965)).

¶13 Subsection (E)(1), and indeed all of Title 13, is silent as to who
should bear the cost of pretrial electronic monitoring. When a statute is
silent regarding an issue, “we must look beyond the statutory language and
consider the statute’s effects and consequences, as well as its spirit and
purpose.” Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 193 (1993)
(citing Kriz, 145 Ariz. at 377).

¶14 Here, the superior court believed the cost should be borne by
Petitioner. Mohave County has taken no position, and the Arizona
Attorney General agrees with Petitioner that the financial burden should be
borne by the county. We agree with Petitioner and the Attorney General
that State v. Reyes, 232 Ariz. 468 (App. 2013), supports the proposition that
counties are not authorized to shift the costs of pretrial electronic
monitoring to defendants under § 13-3967(E)(1).

¶15 In Reyes, the superior court ordered the defendant, a
convicted felon, to submit to DNA testing and pay the applicable fee for the
cost of the testing pursuant to A.R.S. § 13–610. 232 Ariz. at 471, ¶ 8. Reyes
objected, arguing the order violated his due process rights because the
statute does not authorize the court to impose a fee. Id. This court held that
the legislature’s failure to “specifically state that a convicted felon has to
pay” the costs associated with statutorily mandated DNA testing left “no
basis” for a court to order that he do so. Id. at 472, ¶ 11. As this court noted,
if the legislature wanted convicted felons to pay the cost of mandatory DNA
testing, “we presume it would say so expressly, as it has done so in other
statutes.” Id. (citing A.R.S. §§ 13-902(G), 31-467.06(A), and 11-459(K)).

¶16 Here, as in Reyes, the statute at issue imposes a mandatory
release condition but does not identify who must pay the cost of
implementing this condition. See id. at 471, ¶ 9. If the superior court in
Reyes could not order a convicted felon to pay for mandatory DNA testing
where the statute was silent about cost shifting, the same reasoning applies
here—and with greater force—where Petitioner is accused of certain crimes
but has not yet been tried, much less convicted. Thus, the superior court
here lacked the statutory authority to order that Petitioner bear the cost of
electronic location monitoring during his pretrial release.

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¶17 The legislative history of A.R.S. § 13-3967(E)(1) also supports
our conclusion. Committee minutes taken during consideration of
subsection (E) indicate that legislators added the “where available”
language “so counties in which [electronic monitoring] is not available
would not have an additional incurred cost.” Minutes of the House
Appropriations Committee, 45th Leg., 2nd Reg. Sess. at 4 (April 8, 2002),
quoted in Haag v. Steinle, 227 Ariz. at 215, ¶ 11. The issue in Haag was
whether the superior court had the discretion to allow an out-of-state
defendant to be released to a location beyond the coverage of the local
monitoring system. 227 Ariz. at 213, 216, ¶¶ 1, 3, 16. This court relied in
part on the committee minutes to reject the State’s argument that the phrase
“where available” required the defendant to be released in Maricopa
County rather than in his home city in which electronic monitoring was
unavailable. Id. at 214-15, ¶¶ 7, 11-12. Instead, we determined “that the
‘where available’ language came about in recognition of the fiscal reality
that not all counties have electronic monitoring capabilities.” Id. at 215,
¶ 12. Haag’s analysis of the legislative history of subsection (E) further
demonstrates that, although counties are not necessarily required to invest
in location monitoring devices, counties that utilize such devices may not
require accused defendants such as Petitioner to pay the cost.4

II. The Superior Court’s Determination of “Where Available”

¶18 Petitioner maintains the superior court abused its discretion
and denied him due process when it concluded that electronic location
monitoring is not available in Mohave County and then imposed a secured
bond of $100,000 on him. In reviewing the court’s determination, we will
sustain the ruling if reasonable evidence in the record supports it. See State
v. Veatch, 132 Ariz. 394, 396 (1982).

¶19 As we have recognized, the phrase “where available” in
subsection (E)(1) derived from a legislative recognition that some counties
may not have electronic monitoring “capabilities.” Haag, 227 Ariz. at 215,
¶ 12. In Haag, this court remanded the matter to the superior court to
“exercise its discretion and decide whether to release Haag to his

4 We recognize a difference between imposing electronic monitoring
on a pretrial defendant who has not yet been convicted and imposing it on
a probationer who has, in fact, been convicted, see generally A.R.S. § 13-
902(G) (“The court may impose a fee on the probationer to offset the cost of
the monitoring device required by this subsection.”), and we do not address
whether retroactively imposing the cost of pretrial electronic location
monitoring is a permissible fee or fine as a result of that conviction.

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[out-of-state] home . . . without electronic monitoring,” and further advised
that the court could “consider the unavailability of electronic monitoring in
[Haag’s hometown] as a factor relevant to the release determination.” Id. at
216, ¶ 16.

¶20 Relying in part on this language from Haag, we interpret the
phrase “where available” in A.R.S. § 13-3967(E)(1) as encompassing actual
availability of the service as well as the financial ability of the county to pay
the costs of the electronic location monitoring. In this case, no record was
developed in the superior court as to either the resources or providers
available for such monitoring or Mohave County’s ability to pay for that
monitoring.5 Instead, the superior court made unsupported anecdotal
statements regarding its personal impression of the county’s willingness
and ability to pay for electronic location monitoring, and expressed concern
over potential political repercussions if it ordered the county to pay, noting
“one example of what happened when a commissioner tried to follow the
law and force the county to pay for [electronic monitoring] and what the
board of supervisors tried to do to that commissioner for applying that
law.”6 The court then concluded that electronic location monitoring is “not
available in Mohave County.”

¶21 Here, the practical availability of electronic location
monitoring in Mohave County cannot reasonably be disputed: monitoring
is available at a cost. But no evidence was presented at the May 16 hearing
regarding the county’s ability to pay for monitoring, and the record
otherwise contains no such evidence.7 With no evidence regarding Mohave

5 At oral argument before this court, both counsel for the ACLU and
the Attorney General represented that when a court imposes pretrial
electronic location monitoring in other Arizona counties under § 13-3967,
the other counties are picking up the cost and do not consider such
electronic monitoring unavailable for financial reasons.

6 The court did not otherwise specify the repercussions to which it
referred.

7 The only evidence identified on appeal is an e-mail exchange
between a Mohave County probation administrator and a defense attorney
concerning pretrial electronic monitoring options for the defendants in the
earlier special actions. See supra note 3. There is nothing to indicate those
e-mails were submitted to the superior court as part of the record in this
case; more importantly, that e-mail exchange merely reflects that the

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County’s electronic monitoring capabilities, the superior court abused its
discretion in reaching the unsupported conclusion that such monitoring
was not available in Mohave County. Accordingly, that determination
must be vacated, and the superior court is directed to hold a hearing and
develop a record on the availability of electronic monitoring in Mohave
County. The hearing must address (1) the county’s ability to bear the
expense, either on an in-house basis or through contractual arrangement
with a private provider, and (2) the cost (and possible cost savings) of
electronic monitoring versus pretrial incarceration, both incrementally and
as a whole.8 If the superior court determines that electronic location
monitoring is “available” in Mohave County, then Petitioner must remain
reinstated on such monitoring, at the county’s expense, subject to the
previous restrictions imposed by the court, and barring any change in
circumstance affecting such reinstatement. See A.R.S. § 13-3967(C).

III. Other Considerations

¶22 If the superior court determines that electronic location
monitoring is not “available” in Mohave County, then such condition
cannot be imposed, and the superior court may consider that a change in
circumstances allows the court to redetermine “the method of release or the
amount of bail.” See A.R.S. § 13-3967(B). In making such a redetermination,
however, the superior court must make an individualized assessment of
what release conditions and/or bail are appropriate based on a factual
record developed at an evidentiary hearing. At the hearing, the court must
consider and weigh all enumerated statutory factors found in A.R.S. § 13-
3967(B), as well as any other factors supported by the evidence that the
court deems relevant, and make a record of its findings as to each factor—
something the court failed to do at the May 16 hearing or in its subsequent
minute entry.

probation department did not have funds allocated to bear the cost of
pretrial electronic monitoring, and that a decision had been made to have
pretrial defendants instead contract with and directly pay an outside
provider for that service.

8 It would seem difficult if not impossible to conclude that electronic
monitoring is financially unavailable if the additional cost of holding a
pretrial defendant in jail is greater than the cost of placing that same person
on electronic monitoring. Assuming this to be true, the county may not
simply elect to render monitoring unavailable by refusing to pay for it.

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Opinion of the Court

¶23 Finally, we note that the parties have raised numerous
arguments regarding the constitutionality of the superior court’s prior
rulings on electronic location monitoring and the bail imposed. As our
supreme court has observed, “[W]e should resolve cases on non-
constitutional grounds in all cases where it is possible and prudent to do
so.” State v. Korzuch, 186 Ariz. 190, 195 (1996). Moreover, because the
superior court’s rulings have been vacated and/or revised and are subject
to further consideration by the superior court, any comment by this court
considering such potential issues would be advisory. See Progressive
Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 1985)
(recognizing that appellate courts should not give advisory opinions or
decide issues unnecessary to the disposition of an appeal). Accordingly, we
do not address those arguments at this time.

CONCLUSION

¶24 We accept jurisdiction and grant relief in part, concluding that
A.R.S. § 13-3967(E)(1) provides no authority for imposing the cost of pretrial
electronic location monitoring on a defendant. Additionally, we direct the
superior court to hold a hearing on whether electronic monitoring is
“available” in Mohave County and, if necessary, to redetermine the method
of release or the amount of bail based on an individualized assessment of
the factors outlined in A.R.S. § 13-3967(B).

AMY M. WOOD • Clerk of the Court
FILED: AA

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