Fragoso v. Fell

111 P.3d 1027, 210 Ariz. 427, 451 Ariz. Adv. Rep. 39, 2005 Ariz. App. LEXIS 64

• Court: Court of Appeals of Arizona
• Decided: May 10, 2005
• Docket: 2 CA-SA 2005-0001
• Status: Published

Opinions

OPINION

PELANDER, 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 AR.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.

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 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).

V 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 eases on nonconstitutional grounds if possible, avoiding resolution of constitutional issues, when other principles of law are controlling and the ease 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 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.

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 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 bad. § 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 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 Commission, 183 Ariz. 387, , 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) (cash-only bail constitutionally permissible), and Ex parte Singleton, No. CR-03-1981, 2004 WL 2676659, at *4, 902 So.2d 132 (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, 66 Ohio St.3d 115, 609 N.E.2d 541 (1993) (same). Fragoso relies heavily on the latter two eases, 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 ease 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.

¶ 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, 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 287, 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 elause[,] ... 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) (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:

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 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 Fra-goso’s special action, we deny relief.

ESPINOSA, J., concurring.

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

2 . We acknowledge that some courts have held-that their court rules did not permit cash-only bail. State ex rel. Jones v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 543-44 (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, 115 Wash.App. 604, 63 P.3d 177, 180 (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 Frago-so’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.

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).

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).

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 “surely” 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).

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.”