Fragoso v. Fell

FLÓREZ, 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 follow that text.” Ariz. State Democratic Party v. State, 209 Ariz. 103, ¶ 8, 98 P.3d 214, *435218 (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 bondsper-son. This conclusion is confirmed in 8A Am. Jur.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. 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 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 *436assumes 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 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:

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, 66 Ohio St.3d 115, 609 N.E.2d 541, 544 (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.

¶ 34 Rule 7.3(b) sets forth six nonmandato-ry conditions that may be placed on an order of release if “reasonably necessary to secure *437a 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 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.”

II37 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 ineon-gruent 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 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, 115 Wash.App. 604, 63 P.3d 177, 180 (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 “[ijmpose any other condition deemed reasonably necessary to assure appearance as required,” the Mollett court addressed the *438same 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 rale did not permit cash-only bail. The sufficient 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, 125 Wash.2d 277, 892 P.2d 1067 (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).

. 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.”).