State of Arizona v. Christopher Arevalo

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellant,

v.

CHRISTOPHER AREVALO,
Appellee.

No. CR-19-0156-PR
Filed September 1, 2020

Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Gordon, Judge
Nos. CR2017-117321-001; CR2017-002116-001
AFFIRMED AND REMANDED

Memorandum Decision of the Court of Appeals
Division One
Nos. 1-CA-CR 18-0298; 1 CA-CR-19-0299
Filed Apr. 4, 2019
VACATED

COUNSEL:

Allister R. Adel, Maricopa County Attorney, Daniel Strange (argued),
Deputy County Attorney, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld
(argued), Deputy Public Defender, Phoenix, Attorneys for Christopher
Arevalo

David J. Euchner, Pima County Public Defender’s Office, Tucson; and
John F. Sullivan, Chandler, Attorneys for Amicus Curiae Arizona
Attorneys for Criminal Justice

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
 STATE V. AREVALO
Opinion of the Court

GOULD and BEENE joined. JUSTICE BOLICK, joined by JUSTICE
PELANDER (RETIRED), * concurred.

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether A.R.S. § 13-1202(B)(2), which enhances
the sentence for threatening or intimidating if the defendant is a criminal
street gang member, is constitutional. We hold that it is not because it
increases a criminal sentence based solely upon gang status in violation of
substantive due process.

BACKGROUND

¶2 The charges against defendant Christopher Arevalo arise
from two distinct cases. First, as alleged, on March 4, 2017, Arevalo entered
a convenience store, was asked to leave by an employee who recognized
him from prior shoplifting incidents, and grabbed a bag of peanuts and a
soda without paying. As he was leaving, Arevalo gestured towards the
employee and the store manager, mimicked holding a firearm, and
vocalized gunfire noises. Arevalo did not mention any gang affiliation
during the encounter. The employee and manager later told the police they
believed Arevalo was a criminal street gang member and felt threatened by
his behavior. After his arrest, Arevalo told officers he stole the items and,
when questioned about gang membership, admitted he was a gang
member. He explained he was a member of a street gang in Los Angeles
and that he began associating with a local gang after moving to Arizona.
Arevalo was indicted for two counts of threatening or intimidating in
violation of § 13-1202(B)(2).

¶3 Then, on April 14, 2017, Arevalo’s father called 911 after
Arevalo became aggressive during a family dispute. When police arrived,
Arevalo was hiding in a bedroom and told police to leave. Arevalo
threatened one officer, vowing to “bash his head” if the officer entered the

* Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
John Pelander, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.

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Opinion of the Court

room. Several officers eventually entered the room, wherein Arevalo
threatened them with a tire iron. Arevalo was arrested and charged with
two counts of threatening or intimidating in violation of § 13-1202(B)(2).

¶4 Under § 13-1202(B)(2), a defendant receives an enhanced
sentence if convicted of threatening or intimidating—a class 6 felony rather
than a class 1 misdemeanor—if he is a criminal street gang member. The
State, however, did not allege a nexus between Arevalo’s charged conduct
and his gang membership.

¶5 Arevalo moved to dismiss all threatening or intimidating
charges, or alternatively to reduce them to class 1 misdemeanors, arguing
that § 13-1202(B)(2)’s sentencing enhancement for mere gang membership
is unconstitutional. The trial court dismissed all threatening or intimidating
charges, ruling that § 13-1202(B)(2) is unconstitutional because it violates
due process by punishing a defendant solely for gang membership or
association.

¶6 The State appealed both cases and the court of appeals
consolidated the appeals. The court analyzed Arevalo’s claims under
substantive due process, equal protection, and First Amendment free
speech and associational rights. See State v. Arevalo, Nos. 1 CA-CR 18-0298,
1 CA-CR 18-0299, 2019 WL 1509879 (Ariz. App. Apr. 4, 2019) (mem.
decision). The court rejected each argument, reversing the trial court’s
order and remanding the case. Id. at *3 ¶ 11.

¶7 We granted review to determine the constitutionality of § 13-
1202(B)(2)’s sentencing enhancement for membership in a criminal street
gang—a recurring issue of statewide importance. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-
120.24.

DISCUSSION

¶8 Arevalo argues that § 13-1202(B)(2) violates the Due Process
Clause by punishing mere association in a gang. We agree. The court of
appeals addressed the constitutionality of § 13-1202(B)(2) under the Due
Process and Equal Protection Clauses, and the First Amendment. But,
because we conclude the statute violates substantive due process, we do not

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Opinion of the Court

address Arevalo’s equal protection and First Amendment claims, which he
has not urged in this Court.

A.
¶9 We review the constitutionality of statutes de novo. State v.
Holle, 240 Ariz. 300, 302 ¶ 8 (2016). “An act of the legislature is presumed
constitutional, and where there is a reasonable, even though debatable,
basis for enactment of the statute, the act will be upheld unless it is clearly
unconstitutional.” State v. Ramos, 133 Ariz. 4, 6 (1982); see Gomez v. United
States, 490 U.S. 858, 864 (1989) (“It is our settled policy to avoid an
interpretation of a federal statute that engenders constitutional issues if a
reasonable alternative interpretation poses no constitutional question.”); cf.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 247–51 (2012) (the “constitutional-doubt” canon rests “upon a judicial
policy of not interpreting ambiguous statutes to flirt with constitutionality,
thereby minimizing judicial conflicts with the legislature”). Because there
is a strong presumption in favor of a statute’s constitutionality, the
challenging party bears the burden of proving its unconstitutionality. See
Eastin v. Broomfield, 116 Ariz. 578, 580 (1977). The presumption of
constitutionality may require us to interpret a statute to give it a
constitutional construction if possible, but we will not rewrite a statute to
save it. See, e.g., Holle, 240 Ariz. at 310 ¶ 47 (reiterating that courts may not
rewrite a statute to avoid an alleged constitutional flaw).

¶10 A party raising a facial challenge to a statute “must establish
that no set of circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987); see also City of Los Angeles v.
Patel, 576 U.S. 409, 418 (2015) (“Under the most exacting standard the Court
has prescribed for facial challenges, a plaintiff must establish that a ‘law is
unconstitutional in all of its applications.’” (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 (2008))); Stanwitz v. Reagan,
245 Ariz. 344, 349 ¶ 19 (2018) (to same effect).

B.

¶11 The Fourteenth Amendment to the United States
Constitution, and article 2, section 4 of the Arizona Constitution, protect a
citizen’s right to “due process of law.” U.S. Const. amend. XIV, § 1 (“[N]or
shall any state deprive any person of life, liberty, or property, without due

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Opinion of the Court

process of law.”); Ariz. Const. art. 2, § 4 (“No person shall be deprived of
life, liberty, or property without due process of law.”). “Substantive due
process protects an individual from government interference with rights
implicit in the concept of ordered liberty . . . .” Samiuddin v. Nothwehr, 243
Ariz. 204, 209 ¶ 13 (2017) (quoting Simpson v. Owens, 207 Ariz. 261, 267 ¶ 17
(App. 2004)). The United States Supreme Court has explained that the
substantive due process standard for permissibly criminalizing
associational status requires a substantial nexus between the status and
underlying criminal charge:

[G]uilt is personal, and when the imposition of punishment
on a status or on conduct can only be justified by reference to
the relationship of that status or conduct to other concededly
criminal activity . . . that relationship must be sufficiently
substantial to satisfy the concept of personal guilt in order to
withstand attack under the Due Process Clause . . . .

Scales v. United States, 367 U.S. 203, 224–25 (1961).

¶12 In Scales, the defendant was charged under the Smith Act, 18
U.S.C. § 2385, which criminalized “the acquisition or holding of knowing
membership in any organization which advocates the overthrow of the
Government of the United States by force or violence.” Id. at 205–06. The
indictment alleged that the defendant was a member of the Communist
Party of the United States and had “knowledge of the Party’s illegal
purpose and a specific intent” to overthrow the government. Id. The
defendant challenged the statute’s constitutionality, in part, on due process
grounds because “it impermissibly impute[d] guilt to an individual merely
on the basis of his associations and sympathies, rather than because of some
concrete personal involvement in criminal conduct.” Id. at 220.

¶13 The Court distilled the constitutional inquiry to “an analysis
of the relationship between the fact of membership and the underlying
substantive illegal conduct, in order to determine whether that relationship
is indeed too tenuous to permit its use as the basis of criminal liability.” Id.
at 226. In the context of the Smith Act’s criminalization of Communist Party
membership, the Court reasoned that due process is satisfied only if the
statute was applied to “‘active’ members” who have a “guilty knowledge
and intent.” Id. at 228. The Court declined to recognize “[m]embership,
without more, in an organization engaged in illegal advocacy,” as a
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Opinion of the Court

sufficient nexus between association and criminal activity to satisfy the
concept of personal guilt under the due process clause. Id. at 225–27.

¶14 We extract from Scales the principle that due process allows
criminalization of membership in an organization only if such status has a
sufficient connection, or nexus, to the underlying criminal conduct. We also
import Scales’ qualitative standard, even though it predates the three-tiered
scrutiny level analysis the Supreme Court later adopted, because the
relationship between associational membership and the underlying
criminal conduct “must be sufficiently substantial to satisfy the concept of
personal guilt in order to withstand attack under the Due Process Clause.”
367 U.S. at 225.

¶15 Under the three-tiered scrutiny level analysis, we apply one
of three standards of review ranging from strict to intermediate scrutiny to
rational basis review, depending on the right impacted, to assess a statute’s
constitutionality. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976)
(establishing intermediate scrutiny); McGowan v. Maryland, 366 U.S. 420,
425–26, 449 (1961) (discussing rational basis and strict scrutiny review).
Strict scrutiny applies to a statute that implicates fundamental rights or a
suspect class. Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 555
(1981). We will uphold a statute under strict scrutiny only if it is necessary
to promote a compelling state interest and the statutory restriction is
narrowly tailored. Simpson v. Miller, 241 Ariz. 341, 347 ¶ 22 (2017).
Intermediate scrutiny applies in a narrower set of circumstances to statutes
that affect categories such as gender and illegitimacy of birth. See Simat
Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 458 ¶ 15
(2002). A statute will survive intermediate scrutiny if a court finds the
interests served by the government action are important and the state’s
means to achieve the goals are “reasonable, not arbitrary, and have a fair
relation to those goals.” Id. Finally, rational basis review applies if a statute
does not implicate a fundamental right or a suspect class. Ariz. Downs, 130
Ariz. at 555. The statute will survive a due process challenge under the
rational basis standard if it “has any conceivable rational basis to further a
legitimate governmental interest.” Id. Here, we conclude that § 13-
1202(B)(2) fails even rational basis review—and therefore we need not
analyze whether the statute meets strict or intermediate scrutiny—because
it does not require a nexus between threatening or intimidating and gang
membership.

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Opinion of the Court

C.

¶16 We turn now to § 13-1202(B)(2), which enhances criminal
penalties for threatening or intimidating if a defendant is a member of a
criminal street gang:

B. Threatening or intimidating pursuant to subsection A,
paragraph 1 or 2 is a class 1 misdemeanor, except that it is a
class 6 felony if:

....

2. The person is a criminal street gang member.

¶17 The court of appeals acknowledged Scales’ due process
requirement that guilt be personal but reasoned that § 13-1202(B)(2)
satisfies this standard because it “does not penalize mere membership in a
criminal street gang—it penalizes the added menace inflicted when a
criminal street gang member is engaged in criminal conduct.” Arevalo, 2019
WL 1509879 at *2 ¶ 7 (quoting State v. Meeds, 244 Ariz. 454, 465 ¶ 32 (App.
2018)). Based on Meeds’ reasoning alone, the court concluded that “the
statute does not implicate the constitutional considerations in Scales and
properly relies on personal guilt.” Id. But the court’s analysis fails to
meaningfully address the core issue in this case—whether a sentencing
enhancement based solely on gang membership, which is all the statute
requires, rather than Meeds’ interpretation, which imported an “added
menace” criterion, constitutes a sufficient nexus with the underlying crime.
Thus, by relying on Meeds, the court of appeals circumvented the requisite
due process inquiry.

¶18 The State argues that “the increased risk of violence when
threats or intimidation [are] done by a gang member, versus a non-gang
member . . . is the nexus the Court of Appeals referenced when it concluded
[§] 13-1202(B)(2) does not penalize mere membership in a street gang.” The
State reasons that there only “needs to be a relationship between the gang
status and the crime of threatening and intimidating that is sufficient to
permit gang membership’s use as the basis of criminal liability,” rather than
a direct correlation between an individual’s gang membership and the
purpose of his actual threats. We disagree.

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Opinion of the Court

¶19 Although a gang member’s proclamation of membership,
when it accompanies the crime of threatening or intimidating, might
provide a sufficient nexus between membership and the crime to justify
enhanced punishment, a theoretical or abstract connection between the two
fails to satisfy Scales’ due process standard because “the relationship
between the fact of membership and the underlying substantive illegal
conduct” must be sufficiently substantial to warrant punishment. See
Scales, 367 U.S. at 226. A non-gang member’s threat is indistinguishable
from that of a gang member if the threat is not bolstered—or connected—
by gang membership. The flaw in the State’s argument is that it sanctions
what due process forbids—punishment based solely on associational
status.

¶20 We hold that § 13-1202(B)(2) violates Scales’ due process
standard because it enhances criminal penalties based solely on gang status
without a sufficient nexus between gang membership and the underlying
crime of threatening or intimidating. Indeed, it permits sentencing
enhancement based on gang status even if the crime is wholly unrelated to
a defendant’s gang membership. An example is illustrative. Assume a
teenager is, unbeknownst to his mother, a gang member. In the midst of a
domestic disturbance, he threatens to strike his mother and is subsequently
charged with threatening or intimidating. Under the State’s argument and
the court of appeals’ reasoning, the defendant would be subject to a (B)(2)
sentencing enhancement for gang membership even though his mother was
unaware of his affiliation, he never invoked it to bolster his threat, and the
crime was altogether unrelated to his gang activity. And even if the mother
knew of her son’s gang membership, the State would not have to prove that
knowledge or otherwise relate his membership to the offense to invoke
(B)(2)’s enhancement. By its terms, § 13-1202(B)(2) permits sentencing
enhancement absent any nexus between gang membership and the crime.
The absence of a nexus requirement between gang status and the crime of
threatening or intimidating renders the statute facially invalid under
Salerno because no application comports with constitutional standards. See
481 U.S. at 745. We cannot, and will not, rewrite the statute to save it. See
Holle, 240 Ariz. at 310 ¶ 47.

¶21 The statute in Scales criminalized organizational membership
whereas § 13-1202(B)(2) enhances a sentence, based on gang membership,
for an underlying personal crime. But, as the State conceded at argument,
this distinction is immaterial. Scales’ “personal guilt” or “nexus” due
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Opinion of the Court

process requirement applies with equal force to substantive offenses and
sentencing enhancements. See, e.g., State v. Bonds, 502 S.W.3d 118, 154–58
(Tenn. Crim. App. 2016) (finding unconstitutional a statute enhancing
criminal sentences for gang members without requiring a nexus between
gang status and the underlying crime); State v. O.C., 748 So. 2d 945, 950 (Fla.
1999) (same); cf. State v. Woodbridge, 791 N.E.2d 1035, 1041 ¶ 40 (Ohio Ct.
App. 2003) (upholding the constitutionality of a statute against challenges
of vagueness and overbreadth because it explicitly punished conduct, not
association, as it required a nexus between gang status and criminal
activity).

D.

¶22 The expansive definition of “criminal street gang” in A.R.S.
§ 13-105(8) reinforces our holding requiring a nexus between gang
membership and the underlying crime as a precondition for enhancing
punishment for gang status. Under the statute’s definition, “‘[c]riminal
street gang’ means an ongoing formal or informal association of persons in
which members or associates individually or collectively engage in the
commission, attempted commission, facilitation or solicitation of any felony
act and that has at least one individual who is a criminal street gang
member.” Id. The definition’s breadth invites its sweeping application, and
it presents a substantial risk that the (B)(2) sentencing enhancement will
apply without a sufficient nexus between gang membership and the
underlying crime. Indeed, our courts have recognized the statute’s purpose
to punish gang members without any inquiry as to the relationship between
a threat and gang status. See, e.g., State v. Cooper, Nos. 1 CA-CR 16-0869,
No. 1 CA-CR 17-0502, 2018 WL 6217090, at *3 ¶ 10 (Ariz. App. Nov. 29,
2018) (mem. decision) (“[T]he purpose [of § 13-1202(B)(2)] is to punish gang
members with a felony conviction if they threaten or intimidate anyone,
regardless of the circumstances.”).

¶23 The statutory structure of § 13-1202 further dispels the notion
that (B)(2) serves any purpose other than to enhance punishment based
solely on gang status. Section 13-1202(A)(3) provides:

A person commits threatening or intimidating if the person
threatens or intimidates by word or conduct: . . . [t]o cause
physical injury to another person or damage to the property
of another in order to promote, further or assist in the interests
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Opinion of the Court

of or to cause, induce or solicit another person to participate
in a criminal street gang . . . .

A violation of (A)(3) is a class 3 felony pursuant to § 13-1202(C). Section
(A)(3) evinces the legislature’s intent to justify an enhanced sentence for
threatening or intimidating when a sufficient nexus exists between a
defendant’s gang membership and the underlying crime. By contrast, other
than its impermissible purpose to penalize mere gang membership, any
constitutional application of (B)(2) would render the provision superfluous
because a violation of (A)(3) would, in most instances, subsume it.

¶24 We note that courts in other jurisdictions have held similar
statutes unconstitutional as violative of due process if they penalize gang
membership without requiring a nexus between gang status and the
underlying crime. We find O.C. and Bonds illustrative and persuasive. In
O.C., the Florida Supreme Court invalidated a statute that enhanced
penalties “[u]pon a finding by the court at sentencing that the defendant is
a member of a criminal street gang” because the statute did not require a
nexus and lacked a “‘reasonable and substantial relation’ to a permissible
legislative objective.” 748 So. 2d at 947, 950 (citation omitted) (emphasis
omitted); see id. at 950 (“[T]he statute punishes gang membership without
requiring any nexus between the criminal activity and gang membership
[and thus] lacks a rational relationship to the legislative goal of reducing
gang violence or activity . . . .”).

¶25 Similarly, in Bonds, the Tennessee Court of Criminal Appeals
examined a statute that stated, in relevant part, that “[a] criminal gang
offense committed by a defendant who was a criminal gang member at the
time of the offense shall be punished one (1) classification higher than the
classification established by the specific statute creating the offense
committed.” 502 S.W.3d at 147. The defendants challenged the statute as a
violation of substantive due process because it “lack[ed] a nexus between
gang membership and criminal conduct.” Id. at 154. The court held the
subsection unconstitutional as it was “completely devoid of language
requiring that the underlying offense be somehow gang-related.” Id. at 157.
Consequently, like § 13-1202(B)(2), the statute impermissibly enhanced the
defendant’s punishment solely for his association with a gang. Id. at 158.

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Opinion of the Court

E.

¶26 The court of appeals declined to revisit its decision in Meeds
and, instead, embraced its reasoning. In Meeds, the court addressed a
similar constitutional challenge to § 13-1202(B)(2). There, the defendant
repeatedly threatened his girlfriend, including sending menacing text
messages, visiting her workplace, and threatening to “shoot up” her house
or set it on fire. 244 Ariz. at 458–59 ¶¶ 2–3. At trial, the victim testified that
she believed Meeds was a gang member, saw him with other gang
members, and heard him reference his gang affiliation. Id. at 459 ¶ 5.
Meeds was convicted under § 13-1202(B)(2) and received an enhanced
sentence based on his gang membership. Id. at 459–60 ¶ 8. On appeal,
Meeds challenged § 13-1202(B)(2) on grounds of vagueness and
overbreadth, arguing it impinged on the First Amendment right to
association. Id. at 462 ¶ 21. The court of appeals rejected Meeds’ First
Amendment challenge, concluding that the statute serves a compelling
state interest “to protect the public from threats and intimidation by
members of criminal street gangs, who presumably have a much greater
ability than non-gang members to make good on those threats.” Id. at 465
¶ 32. The court reasoned that “[§] 13-1202(B)(2) does not penalize mere
membership in a criminal street gang—it penalizes the added menace
inflicted when a criminal street gang member is engaged in criminal
conduct.” Id. (citing Callanan v. United States, 364 U.S. 587, 593 (1961)).

¶27 Although Meeds considered First Amendment vagueness and
overbreadth challenges to the statute—issues not raised here—we disavow
it to the extent the court mischaracterized the statute’s requirements by
concluding it “does not penalize mere membership in a criminal street
gang—it penalizes the added menace inflicted when a criminal street gang
member is engaged in criminal conduct.” Id. It may be true that the policy
animating (B)(2)’s enactment is to confront what is presumed to be “the
added menace inflicted when a criminal street gang member is engaged in
criminal conduct,” but the statute’s text does precisely what Meeds says it
does not—it penalizes mere membership in a criminal street gang.

CONCLUSION

¶28 We vacate the court of appeals’ decision, affirm the trial
court’s ruling, and remand to the trial court for further proceedings.

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JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED),
Concurring

BOLICK, J., joined by PELANDER, J. (RETIRED), concurring:
¶29 I join fully the Court’s well-reasoned opinion. In addition to
the substantive issues addressed by the Court, Arevalo made arguments
regarding the proper application of the presumption of statutory
constitutionality. I write separately because I would discard that
presumption.

¶30 It is essential to our system of justice, and to its endurance,
that every person enter the courtroom on a level playing field. Sometimes
our rules of procedure provide a momentary advantage to one side or the
other, but ideally the law is blind to the identity, power, and resources of
the litigants. All of that is represented by the most ubiquitous symbol of
the American judicial system, the scales of justice. They are, by their nature
and necessity, evenly balanced. But when a litigant, whether in a criminal
or civil context, argues that a law that diminishes liberty is unconstitutional,
the scales are tipped by the presumption of constitutionality in favor of the
government. Although this presumption is deeply rooted in our
jurisprudence, it is antithetical to the most fundamental of ideals: that our
constitutions are intended primarily not to shelter government power, but
to protect individual liberty.

¶31 Although Arizona courts adopted the presumption of
constitutionality from federal jurisprudence, it is more pronounced here
than at the national level. As this Court has applied it over the years, the
presumption and the burden to overcome it can be heavy. A constitutional
attack upon a statute triggers several “cardinal rules.” Giss v. Jordan, 82
Ariz. 152, 158 (1957). First, that the “[b]urden is on him who attacks
constitutionality of legislation.” Id. Second, “[g]enerally, every legislative
act is presumed to be constitutional and every intendment must be
indulged in by the courts in favor of validity of such an act.” Id. at 159.
Third, the Court “will not declare a legislative act unconstitutional unless
satisfied beyond a reasonable doubt of its unconstitutionality.” Id.; see also
Smith v. Mahoney, 22 Ariz. 342, 346 (1921) (“[I]t is our bounden duty to view
the legislative enactment under consideration . . . and sustain it, unless we
are convinced beyond reasonable doubt that it is clearly in conflict with the
constitutional provision.”). Indeed, an early decision went so far as to say
that the burden on a party challenging the constitutionality of a statute is of
“as great a weight of evidence and reasoning as would be required to be
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JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED),
Concurring

presented by the state to convict a defendant of murder.” State v. Davey, 27
Ariz. 254, 258 (1925).

¶32 This Court has recognized problems with the presumption
over the years and has trimmed its sails a bit. For instance, the Court
disapproved the “beyond a reasonable doubt” standard because
“[d]etermining constitutionality is a question of law, which we review de
novo,” and this inquiry “fundamentally differs from determining the
existence of historical facts, the determination of which is subject to
deference.” Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014). 1 Likewise, the Court
has declared that “if a law burdens fundamental rights, such as free speech
or freedom of religion, any presumption in its favor falls away.” Id. ¶ 9.
Despite that constructive step, the Court attached the presumption’s
application to a fundamental-rights rubric that is at once familiar, yet
amorphous as to which side of the line a particular right resides. And
although the Court held that the presumption should “fall away” in matters
pertaining to such fundamental rights, it added that the presumption
should remain intact when “the law in question touches only peripherally”
on such rights. Id. In this case, the Court does not confront those nuances,
perhaps because it is not clear from this amorphous framework when the
Court should place its thumb on the scale in favor of the government.

¶33 The rationale for the presumption of constitutionality is two-
fold: that because other public officials have all taken an oath to the
constitution, courts should assume as a matter of comity that they have
acted in accordance with the oath; and that without such a presumption,
courts might transgress upon the legislature’s powers on the basis of policy
disagreements. The United States Supreme Court has explained that “[a]
decent respect for a co-ordinate branch of the government demands that the
judiciary should presume, until the contrary is clearly shown, that there has
been no transgression of power by Congress—all the members of which act

1 Although the Court has abandoned the “beyond a reasonable doubt”
standard, it still erroneously appears in the Arizona trial handbook. See
Ariz. Prac. Trial Handbook § 12:11 (2018 update) (“To overcome the
presumption in favor of the constitutionality of statutes, the opposing party
has the burden of establishing beyond a reasonable doubt that the statute is
in conflict with the federal or state constitution.”).

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JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED),
Concurring

under the obligation of an oath of fidelity to the Constitution.” Legal Tender
Cases, 79 U.S. 457, 531 (1870), abrogated on other grounds by Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002); see also
United States v. Morrison, 529 U.S. 598, 607 (2000) (“Due respect for the
decisions of a coordinate branch of Government demands that we
invalidate a congressional enactment only upon a plain showing that
Congress has exceeded its constitutional bounds.”).

¶34 Similar rationales have informed Arizona jurisprudence.
“The Arizona Legislature is vested with the legislative power of the state,
and has plenary power to deal with any subject within the scope of civil
government unless it is restrained by the provisions of the Constitution.”
Giss, 82 Ariz. at 159; accord State ex rel. Brnovich v. City of Tucson, 242 Ariz.
588, 595 ¶ 27 (2017). Moreover, “questions of the wisdom, justice, policy or
expediency of a statute are for the legislature alone.” Giss, 82 Ariz. at 159.

¶35 I agree with the propositions expressed in Giss, but they do
not support a presumption of constitutionality. Neither the federal nor
state constitution suggests an elevation of legislative or executive power
over individual rights. To the contrary, both constitutions establish the
protection of individual rights as a core purpose. See, e.g., U.S. Const.
Preamble (establishing the Constitution “to . . . secure the Blessings of
Liberty to ourselves and our Posterity”); Ariz. Const. art. 2, § 2
(“[G]overnments . . . are established to protect and maintain individual
rights.”). Indeed, our constitutionally mandated separation of powers,
proclaimed in article 3, “is part of an overall constitutional scheme to
protect individual rights.” State v. Prentiss, 163 Ariz. 81, 84 (1989). These
purposes, conjoined with express guarantees of individual rights in the Bill
of Rights and Arizona’s Declaration of Rights, undermine any notion that
courts should presume that laws infringing individual rights are
constitutional.

¶36 Indeed, the role of the independent judiciary in our
constitutional system is to protect individual rights by ensuring that the
political branches do not exceed their constitutionally assigned authority.
As Alexander Hamilton explained in The Federalist, “the courts were
designed to be an intermediate body between the people and the
legislature, in order, among other things, to keep the latter within the limits
assigned to their authority.” The Federalist No. 78, at 142 (Richard Beeman
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ed., 2012). Without the independent judgment of the judiciary, he declared,
“all the reservations of particular rights or privileges would amount to
nothing.” Id. at 141.

¶37 This view of the framers became the bulwark of American
jurisprudence in Marbury v. Madison. There the Court famously declared
that “it is emphatically the province and the duty of the judicial department
to say what the law is,” and thus the courts cannot simply “close their eyes”
to laws that violate the Constitution. 5 U.S. 137, 177, 179 (1803); accord Ariz.
Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347, 355 ¶ 34 (2012) (“The
interpretation of the laws is the proper and peculiar province of the courts”
and a “constitution is . . . and must be regarded by the judges [] as
fundamental law.”) (quoting The Federalist No. 78); see also Cronin v. Sheldon,
195 Ariz. 531, 538 ¶¶ 30–32 (1999) (asserting the judiciary’s constitutional
role in interpreting the law); Antonin Scalia & Bryan G. Garner, Reading
Law: The Interpretation of Legal Texts 243 (2012) (“In the American system of
separate and coequal powers, authoritative interpretation of the laws is the
assigned role of the courts.”). A contrary view of the judiciary’s
constitutional authority “would be giving to the legislature a practical and
real omnipotence, with the same breath which professes to restrict their
powers within narrow limits.” Marbury, 5 U.S. at 178.

¶38 The role of judicial review articulated by Marbury leaves no
room for the presumption that the legislature acts constitutionally. See, e.g.,
Gary Lawson, Thayer Versus Marshall, 88 Nw. U. L. Rev. 221, 224–25 (1993).
It is true that members of all three branches take constitutional oaths and
thereby are obliged to act constitutionally. But their respective roles require
the courts to serve as the ultimate arbiter, especially when it comes to the
legislative body, which by its nature advances the views of the majority and
resolves competing interests. As James Madison remarked, “[i]t is in vain
to say that enlightened statesmen will be able to adjust these clashing
interests, and render them all subservient to the public good.” The Federalist
No. 10, at 27 (Richard Beeman ed., 2012). Moreover, he warned, “a body of
men are unfit to be both judges and parties at the same time,” yet legislators
who enact laws “concerning the rights of large bodies of citizens” are
“advocates and parties to the causes which they determine[.]” Id. at 26–27.

¶39 Given the competing interests asserted in the legislative
process, Madison proclaimed: “Justice ought to hold the balance between
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JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED),
Concurring

them.” Id. at 27. Specifically, “[t]he prescriptions in favor of liberty ought
to be levelled against that quarter where the greatest danger lies,” Madison
argued, namely, “the body of the people, operating by the majority against
the minority.” James Madison, Speech Proposing Amendments to the
Constitution (June 8, 1789). Thus, as this Court has recognized, “it is well
settled that when one with standing challenges a duly enacted law on
constitutional grounds, the judiciary is the department to resolve the issue
even though promulgation and approval of statutes are constitutionally
committed to the other two political branches.” Ariz. Indep. Redistricting
Comm’n, 229 Ariz. at 355 ¶ 34 (citing Marbury, 5 U.S. at 177); accord Forty-
Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 8 (2006) (“Although
each branch of government must apply and uphold the constitution, our
courts bear ultimate responsibility for interpreting its provisions.”).

¶40 We can preserve the broad authority conferred by the
constitution upon the legislature without diminishing the essential role of
the judiciary by strictly observing essential boundaries and limits on
judicial authority, some of which are expressly recognized in the Court’s
opinion today. The courts should never substitute their policy judgments
for those of the legislature, see Giss, 82 Ariz. at 159, but instead should
simply undertake the narrow task of determining whether the legislature
acted within its constitutional authority. We should never rewrite laws or
exercise legislative functions. See The Federalist No. 78, at 140 (Alexander
Hamilton) (Richard Beeman ed., 2012) (“[L]iberty can have nothing to fear
from the judiciary alone but would have every thing to fear from its union
with either of the other departments[.]”). And if a matter is constitutionally
entrusted to another branch of government, we should refrain from
intervening in its resolution. See, e.g., Nixon v. United States, 506 U.S. 224,
228 (1993) (describing the “political question” doctrine). All of these are
proper rules of judicial deference.

¶41 Similarly, as a matter of statutory interpretation, we should
whenever possible avoid constructions that would render the legislature’s
handiwork unconstitutional. Whenever a court interprets any document,
whether a contract or statute, we should disfavor “interpretations that
would nullify the provision or the entire instrument.” Scalia & Garner,
supra at 66–68 (explaining the “presumption of validity”). More
specifically, we should avoid interpreting a statute in a way that places its
constitutionality in doubt. That interpretative canon traces to the notion
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Concurring

that “a legislature should not be presumed to be sailing close to the wind,
so to speak—entering an area of questionable constitutionality without
making that entrance utterly clear.” Id. at 248 (explaining the
“constitutional-doubt canon”). Although “that is today a dubious
rationale,” it is still the case that “courts should minimize the occasions on
which they confront and perhaps contradict the legislative branch.” Id. at
248–49; see, e.g., Gomez v. United States, 490 U.S. 858, 864 (1989) (“It is our
settled policy to avoid an interpretation of a federal statute that engenders
constitutional issues if a reasonable alternative interpretation poses no
constitutional question.”). By happy happenstance, interpreting a statute
to avoid an unconstitutional effect is ordinarily an outcome that both
parties should favor, as the challenger’s constitutional rights are preserved
while so too is the legislation.

¶42 But interpreting statutes to avoid constitutional problems
when an equally plausible interpretation presents itself is different, by
order of magnitude, from a presumption that a statute is constitutional.
When a court defers to legislative judgments about the constitutionality of
statutes, it abdicates its most essential constitutional duty. See, e.g., Sch.
Dists’ All. for Adequate Funding of Special Educ. v. State, 244 P.3d 1, 12 (Wash.
2010) (Sanders, J., dissenting). Indeed, the presumption of constitutionality
is at war with de novo review, which we announce every time we decide a
statute’s constitutionality. See, e.g., Gallardo, 236 Ariz. at 87 ¶ 8. De novo
means “anew.” De novo, Black’s Law Dictionary (11th ed. 2019). Anew
means “as if a new start were being made and without reference to or
observance of past acts or actions.” Anew, Webster’s Third New
International Dictionary (3d ed. 2002). What we mean by de novo review,
when coupled with a presumption of constitutionality, is that we disregard
the reasoned legal judgment of the courts below, but we credit the
legislature’s self-interested determination of its own constitutional
authority. That is not true de novo review, yet true de novo review is
exactly what our constitutional duty requires.

¶43 The presumption of constitutionality is increasingly subject to
critical judicial and scholarly reexamination. See, e.g., Randy E. Barnett,
Restoring the Lost Constitution: The Presumption of Liberty (2004); F. Andrew
Hessick, Rethinking the Presumption of Constitutionality, 85 Notre Dame L.
Rev. 1447 (2010); Robert F. Utter, Freedom and Diversity in a Federal System:
Perspectives on State Constitutions and the Washington Declaration of Rights, 7
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U. Puget Sound L. Rev. 491, 507 (1984) (presumption of constitutionality
“seriously hampers the courts’ accomplishment of what . . . the Washington
Declaration [of Rights] defines as the fundamental purpose of our state’s
constitution and government: to protect and maintain individual rights”).

¶44 Three members of the Texas Supreme Court recently
questioned excessive judicial deference to legislative enactments in Patel v.
Texas Department of Licensing and Regulation. The justices noted that “[a]
pro-liberty presumption is . . . hardwired into the Texas Constitution,”
meaning that “Texans are thus presumptively free, and government must
justify its deprivations.” 469 S.W.3d 69, 93 (Tex. 2015) (Willett, J.,
concurring). The same is true under the Arizona Constitution. The Texas
justices aptly observed that “[l]awmakers’ policy-setting power is
unrivaled—but it is not unlimited. Preeminence does not equal
omnipotence. Politicians decide if laws pass, but courts decide if those laws
pass muster.” Id. at 95. Citing The Federalist No. 10, these concurring
justices observed that “when people, or branches of government, are free to
judge their own actions, nothing is prohibited.” Patel, 469 S.W.3d at 110.
Although “[t]he question for judges is not whether a law is sensible but
whether it is constitutional,” id. at 102, “we should be neutral arbiters, not
bend-over-backwards advocates for the government.” Id. at 116.

¶45 What does the presumption of constitutionality mean in real
life and real cases? It is hard to say. Is it mere verbiage that we recite to
show we are appropriately constrained before we strike down a law? See,
e.g., John D. Leshy, The Arizona State Constitution 119 (2d ed. 2013) (asserting
that the Court has “overstate[d] the degree to which the judiciary defers to
legislative judgments”). Or is it a significant weight on the scales of justice,
which presents a real risk of sustaining unconstitutional laws because they
do not meet the more exacting requirement of being “clearly”
unconstitutional? Either way, the result is unsatisfying, yet sends an
unmistakable message to Arizonans that they face a judicially
manufactured uphill battle any time they challenge an infringement of their
rights.

¶46 We should dispense with the presumption. Although deeply
embedded in our jurisprudence, it should not continue to subordinate the
essential role of the independent judiciary in protecting individual rights
that was so central to our constitutional design. On this point our
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Concurring

constitution furnishes the necessary counsel: “A frequent recurrence to
fundamental principles is essential to the security of individual rights and
the perpetuity of free government.” Ariz. Const. art. 2, § 1.

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