                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                      MOHAMED ISMA SAMIUDDIN,
                            Petitioner,

                                    v.

THE HONORABLE RICHARD NOTHWEHR, COMMISSIONER OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                      Respondent Commissioner,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CR-16-0422-PR
                        Filed November 2, 2017


       Special Action from the Superior Court in Maricopa County
           The Honorable Richard Nothwehr, Commissioner
                          No. CR2016-130296
                     VACATED AND REMANDED


COUNSEL:

James J. Haas, Maricopa County Public Defender, Seth Apfel (argued),
Karen Vandergaw, Deputy Public Defenders, Phoenix, Attorneys for
Mohamed Isma Samiuddin

William G. Montgomery, Maricopa County Attorney, Amanda M. Parker
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona



JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, TIMMER, BOLICK, and GOULD joined.


JUSTICE LOPEZ, opinion of the Court:
                 SAMIUDDIN V. NOTHWEHR (STATE)
                       Opinion of the Court

¶1            We consider whether Arizona law authorizes Petitioner
Mohamed Samiuddin’s pretrial release conditions requiring that he reside
apart from his family and that he have no unsupervised contact with his
minor non-victim children and whether the conditions violate the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.

¶2             We hold that the Arizona Constitution, statutes, and rules
authorize the trial court to impose such pretrial release conditions. These
conditions, however, must comply with the newly promulgated Arizona
Rules of Criminal Procedure 7.2(a) and 7.3(b), which require release
conditions to be “the least onerous” that are “reasonable and necessary to
protect other persons or the community.” Although Samiuddin has a right
to be heard, neither Arizona law nor Fourteenth Amendment due process
require a trial court to hold an evidentiary hearing to impose or reconsider
a pretrial release condition. The trial court, however, must make an
individualized determination supported by findings sufficient for appellate
review concerning whether the pretrial release conditions are the least
onerous measures reasonable and necessary to protect Samiuddin’s
children.

                             BACKGROUND

¶3            Samiuddin was charged with five counts of public sexual
indecency to a minor, class five felonies under A.R.S. § 13-1403(B), and two
counts of public sexual indecency, class one misdemeanors under A.R.S.
§ 13-1403(A), after he allegedly stood nude at his apartment window and
masturbated in view of the victims, two women and five children, who
were walking on the sidewalk. The victims claimed that as they continued
walking, Samiuddin ran out of his apartment with a “towel” (a sarong,
common attire in Samiuddin’s native Rohingyan culture) wrapped around
his waist, proclaiming his innocence. Samiuddin denies the allegations,
including that he interacted with the victims after his alleged exposure.

¶4             At his arraignment, the trial court found Samiuddin bailable
as a matter of right and released him on his own recognizance with several
pretrial release conditions, including that he reside apart from his family
and that he have no contact with minors under any circumstance. Because
Samiuddin claims to live with several of his minor children, he sought to
modify the release conditions to allow unsupervised contact with his

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                  SAMIUDDIN V. NOTHWEHR (STATE)
                        Opinion of the Court

children and to permit him to return home. Samiuddin argued that the
conditions were improper for three reasons: (1) the State presented no
evidence he harmed or posed a danger to his minor children; (2) his family
should remain together because they are recent refugees; and (3) he is likely
innocent of the charges. The trial court, after a hearing, modified the release
order to allow Samiuddin to have contact with his children if he “is
supervised by a court approved monitor” and pays the costs of supervision.

¶5             The record on review is meager: the trial court’s order
modifying Samiuddin’s release conditions lacks factual findings or
justification for the release conditions, although the parties contend the
court during the hearing referenced “Form 4,” a police probable cause
statement that summarizes the offense conduct but does not mention
Samiuddin’s children; there is no transcript of the hearing; and the
recording of the hearing is inaudible due to technical defects.

¶6              Samiuddin argues that Arizona law does not authorize the
conditions, but, if it did, the conditions violate his Fourteenth Amendment
due process rights. The court of appeals declined jurisdiction of
Samiuddin’s special action, but we granted review because he lacks a
sufficient remedy by appeal and the standards that apply to pretrial release
conditions restricting a parent’s access to a minor non-victim child present
a recurring issue of statewide importance. We have jurisdiction pursuant
to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.


                               DISCUSSION

¶7             We review pretrial release conditions for abuse of discretion,
Gusick v. Boies, 72 Ariz. 233, 235 (1951), and we interpret statutes, rules, and
constitutional provisions de novo. Allen v. Sanders, 240 Ariz. 569, 571 ¶ 9
(2016); Massey v. Bayless, 187 Ariz. 72, 73 (1996). “[T]he words of a statute
are to be given their ordinary meaning unless it appears from the context
or otherwise that a different meaning is intended.” State v. Miller, 100 Ariz.
288, 296 (1966).

   I.         Law Authorizing Pretrial Release Conditions

¶8          The Arizona Constitution provides three grounds for
imposing pretrial bail and release conditions: (1) to “assur[e] the
appearance of the accused”; (2) to “protect[] against the intimidation of

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                  SAMIUDDIN V. NOTHWEHR (STATE)
                        Opinion of the Court

witnesses”; and (3) to “protect[] the safety of the victim, any other person
or the community.” Ariz. Const. art. 2, § 22(B). The Arizona Legislature
specifies, in A.R.S. § 13-3967, judicial officers’ authority to impose bail or
release conditions, including discretion to “[p]lace restrictions on the
person’s travel, associates or place of abode during the period of release” or
to “[p]rohibit the person from possessing any deadly weapon or engaging
in certain described activities or indulging in intoxicating liquors or certain
drugs.” A.R.S. § 13-3967(D)(2), (D)(4) (emphasis added). The Arizona
Constitution and statutes, thus, afford trial courts broad discretion to
fashion pretrial release conditions concerning defendants’ residency,
associations, and activities.

¶9            The Arizona Rules of Criminal Procedure (the “Rules”)
further elucidate judicial officers’ authority to impose pretrial release
conditions. Rule 7.2(a) requires defendants’ release on their “own
recognizance with only the conditions of release required by Rule 7.3(a),
unless the court determines, in its discretion, that such a release will not
reasonably assure the person’s appearance as required or protect other
persons or the community from risk posed by the person.” If the trial court
determines additional conditions are necessary, it “may impose the least
onerous condition or conditions contained in Rule 7.3(b) that are reasonable
and necessary” to ensure appearance or “to protect other persons or the
community.” Ariz. R. Crim. P. 7.2(a). Rule 7.3(b), in turn, provides that a
trial court may impose specified monetary and non-monetary conditions,
including “[a]ny other non-monetary condition that has a reasonable
relationship to assuring the safety of other persons or the community from
risk posed by the person or securing the person’s appearance.” 1 The Rules,
like A.R.S. § 13-3967, provide judicial officers substantial discretion to
fashion pretrial release conditions.




1  We apply the current version of Rule 7.3(b), effective April 3, 2017, to this
case. See State v. Decello, 113 Ariz. 255, 256–57 (1976) (applying new rule of
criminal procedure to pending case where new rule was amended to “make
it even more clear”).


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                  SAMIUDDIN V. NOTHWEHR (STATE)
                        Opinion of the Court

  II.        Authority to Impose the “No Unsupervised Contact”
             Pretrial Release Condition

¶10           Samiuddin argues that a trial court may not prohibit pretrial
unsupervised contact with his minor non-victim children as a release
condition because Arizona law does not expressly authorize it. We
disagree. We give a statute’s words “their ordinary meaning unless it
appears from the context or otherwise that a different meaning is intended.”
Miller, 100 Ariz. at 296. The Arizona Constitution, statutes, and the Rules,
afforded their ordinary meaning, authorize the conditions.

¶11           First, the Arizona Constitution provides that “[p]rotecting the
safety of the victim, any other person or the community” is a primary
purpose of imposing bail or release conditions. Ariz. Const. art. 2,
§ 22(B)(3). We apply the ordinary meaning of “any other person or the
community” to include Samiuddin’s minor children. Second, A.R.S. § 13-
3967(D) authorizes the condition; the statute allows judicial officers to
“[p]lace restrictions on the person’s travel, associates or place of abode
during the period of release” and to “[p]rohibit the person from possessing
any deadly weapon or engaging in certain described activities or indulging in
intoxicating liquors or certain drugs.” A.R.S. § 13-3967(D)(2), (D)(4)
(emphasis added). “Associates” and “[c]ertain described activities” are
sweeping categories, and we are aware of no textual interpretation or
legislative history to support categorically excluding, on either ground,
restrictions on pretrial contact with minors, including defendants’ minor
non-victim children. See Webster’s Second New International Dictionary 167
(1949) (defining “associate” as “[o]ne often in company with another”); id.
at 27 (defining “activity” as “[a]n instance of being active, as in an
occupation, recreation, or the like”). Third, the Rules permit the conditions
because judicial officers have wide discretion to impose non-monetary
conditions beyond the required conditions in Rule 7.3(a) to assure the safety
of “other persons or the community.” See Ariz. R. Crim. P. 7.3(b)(1)(vii).
Samiuddin’s children, as “other persons,” fall under the Rule. Accordingly,
as a threshold matter, judicial officers may prohibit or restrict contact
between a defendant and his minor non-victim children if the condition is
reasonable and necessary to ensure their safety.




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                   SAMIUDDIN V. NOTHWEHR (STATE)
                         Opinion of the Court

    III.      Due Process and Pretrial Release Conditions

¶12            Samiuddin next contends that, even if Arizona law authorizes
the pretrial release conditions, they violate substantive and procedural due
process because they impinge his fundamental right to the care, custody,
and control of his children without an adequate hearing, and they fail to
employ the least restrictive alternative for protecting his children.

¶13            The Fourteenth Amendment provides that states may not
“deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend XIV, § 1. Similar language appears in the Arizona
Constitution, which provides that “no person shall be deprived of life,
liberty, or property without due process of law.” Ariz. Const. art. 2, § 4. 2
“Substantive due process protects an individual from government
interference with rights implicit in the concept of ordered liberty,” and
“[p]rocedural due process guarantees that permissible governmental
interference is fairly achieved.” Simpson v. Owens, 207 Ariz. 261, 267 ¶ 17
(App. 2004) (internal quotation marks omitted).

              A.      Level of Scrutiny

¶14            Samiuddin does not contend that discretionary pretrial
release conditions prohibiting or restricting parents’ access to their children
are, in all instances, unconstitutional. He argues, instead, that we must
apply strict scrutiny review to his conditions because his interest in the care,
custody, and control of his children is a fundamental right, and the trial
court imposed the conditions here without justification.

¶15            The State concedes that parental rights are fundamental but
contends we should not apply strict scrutiny because the contested pretrial
release conditions do not unduly infringe Samiuddin’s fundamental
interests, their restrictions are limited in duration under the speedy-trial
rules, and the State does not seek to terminate his parental rights. Although


2 Because Samiuddin did not ask us to consider the Arizona Constitution,
we analyze his rights under the United States Constitution and our existing
precedent. See, e.g., State v. Thornton, 187 Ariz. 325, 331 n.3 (1996) (analyzing
petitioner’s state and federal constitutional claims under the same standard
when he did not argue that Arizona’s protections were more extensive than
under the federal counterpart).
                                       6
                  SAMIUDDIN V. NOTHWEHR (STATE)
                        Opinion of the Court

we agree that Samiuddin has a fundamental right to parent his children,
and the pretrial release conditions implicate that right, this infringement
does not require strict scrutiny review. Cf. Simpson v. Miller (“Simpson II”),
241 Ariz. 341, 347–48 ¶ 22 (2017) (citing cases for the proposition that “the
[United States Supreme] Court has not consistently applied strict scrutiny
to infringement of fundamental rights”).

¶16            Samiuddin relies primarily on civil cases involving
government infringement of parental decisions concerning children’s
familial contact, health, and education for the proposition that strict
scrutiny applies here. See, e.g., Troxel v. Granville, 530 U.S. 57, 68–69, 72
(2000) (affirming mother’s right to limit paternal grandparent visits while
reasoning that, if a parent is “fit,” “there will normally be no reason for the
State to inject itself into the private realm of the family to further question
the ability of that parent to make the best decisions concerning the rearing
of that parent’s children”); Parham v. J. R., 442 U.S. 584, 604 (1979)
(preserving parent’s right to have child admitted to a mental health
hospital); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268
U.S. 510, 534–35 (1925) (confirming parent’s right to enroll child in non-
public, religious school). These cases are distinguishable, however, because
the purpose of pretrial release conditions that restrict contact with minors
is not to substitute the state’s judgment for that of a presumptively fit parent
concerning a child’s care, but rather to effectuate the state’s compelling
interest in protecting minor children from potential harm by a parent
charged with a crime under certain circumstances. Accordingly, a
defendant’s fundamental parental rights may be balanced with the state’s
interests in protecting the accused’s children. Cf. United States v. Salerno,
481 U.S. 739, 750–51 (1987) (noting that a defendant’s fundamental interest
in liberty “may, in circumstances where the government's interest is
sufficiently weighty, be subordinated to the greater needs of society”).

¶17            Samiuddin cites no cases applying strict scrutiny review to
discretionary pretrial release conditions implicating fundamental rights.
Our approach is consistent with our and other courts’ jurisprudence
rejecting strict scrutiny review in this context and analogous circumstances.
See, e.g., Simpson II, 241 Ariz. at 348 ¶ 23 (noting that Salerno did not apply
strict scrutiny to the Bail Reform Act); State v. Jorgenson, 312 P.3d 960, 967–
68 (Wash. 2013) (applying intermediate scrutiny and rejecting an as-applied
challenge to a law that categorically restricted defendant’s pretrial rights to
possess firearms because the release condition temporarily restricted

                                       7
                   SAMIUDDIN V. NOTHWEHR (STATE)
                         Opinion of the Court

defendant’s right to bear arms only after the trial court found probable
cause that defendant had committed a serious offense); Costa v. Mackey, 227
Ariz. 565, 569 ¶ 7 (App. 2011) (reviewing the trial court’s determination
setting bond at $75 million for an abuse of discretion); cf. Block v. Rutherford,
468 U.S. 576, 584 (1984) (holding that a pretrial detention condition,
including denying pretrial detainees visitation with family members, must
be “reasonably related to a legitimate governmental objective”); Allen v.
State, 141 A.3d 194, 207 (Md. 2016) (enforcing a probation condition
precluding a child sex offender defendant’s unsupervised contact with his
children as “reasonably related to the protection of children”);
Commonwealth v. Lapointe, 759 N.E.2d 294, 298 (Mass. 2001) (upholding a
probation condition preventing defendant convicted of child sex offense
from living with his minor children as “reasonably related to the goals of
sentencing and probation” (internal quotation marks omitted)).

¶18            Although we decline to apply strict scrutiny review to
Samiuddin’s release conditions, we note that the Arizona Constitution,
statutes, and rules restrict discretionary pretrial release conditions. The
Arizona Constitution prohibits excessive bail. Ariz. Const. art. 2, § 15. To
effectuate this principle, Rules 7.2(a), 7.3(b), and A.R.S. § 13-3967(D)(6)
require release conditions to be “the least onerous” and “reasonable and
necessary” to protect the community. The Arizona discretionary pretrial
release scheme, faithfully applied, also satisfies Fourteenth Amendment
substantive due process standards because, by its terms, it requires courts
to tailor pretrial release conditions to be the least onerous, reasonable and
necessary to effectuate the state’s compelling interest in protecting “other
persons or the community.” Cf. United States v. Wolf Child, 699 F.3d 1082,
1092–93 (9th Cir. 2012) (noting that 18 U.S.C. § 3583(d) requires that release
conditions involve “no greater deprivation of liberty than is reasonably
necessary” when imposing a “restrictive condition on the exercise of a
particularly significant liberty interest” (internal quotation marks
omitted)). Here, because the trial court must limit infringement of a
defendant’s parental rights to the least onerous condition reasonable and
necessary to protect the children, we need not further assess the applicable
level of scrutiny because the requirements satisfy any applicable standard.
Cf. United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2010) (rejecting
rational basis as the appropriate standard of review for restrictions on
firearms, but declining to unnecessarily “get more deeply into the ‘levels of
scrutiny’ quagmire”).


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                   SAMIUDDIN V. NOTHWEHR (STATE)
                         Opinion of the Court

              B.     Evidentiary Hearing

¶19           Samiuddin further contends that he was entitled to an
evidentiary hearing when the trial court imposed his initial pretrial release
conditions at his arraignment and when he moved to reconsider the
conditions. Arizona rules and statutes, however, do not require an
evidentiary hearing to impose initial pretrial release conditions or to
reconsider the conditions; rather, what is required is an opportunity to be
heard on release conditions. See Ariz. R. Crim. P. 4.2(a)(7) (requiring that,
at a suspect’s initial appearance, a magistrate shall “[d]etermine the
conditions of release in accordance with Rule 7.2”); Mendez v. Robertson, 202
Ariz. 128, 130–31 ¶¶ 7, 9 (App. 2002) (holding that “[n]either [Rule 7.2(a)]
nor [A.R.S. § 13-3967(B)] affords the person an evidentiary hearing for a
subsequent review of release conditions. Had the legislature wanted to
permit such a hearing, it could have so indicated, as it did in A.R.S. § 13-
3961, which states that a court may determine that an offense is not bailable
only after a hearing.” Defendant “was afforded a hearing, just not the full
evidentiary hearing he desired”).

¶20            Although Arizona rules and statutes do not entitle Samiuddin
to an evidentiary hearing when the trial court imposes or subsequently
reviews his release conditions, he argues, citing Mathews v. Eldridge, 424 U.S.
319 (1976), that procedural due process requires it. “[D]ue process is
flexible and calls for such procedural protections as the particular situation
demands,” id. at 334 (alteration in original) (quoting Morrissey v. Brewer, 408
U.S. 471, 481 (1972)), and the “fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965));
cf. State v. Hidalgo, 241 Ariz. 543, 548–49 ¶¶ 8–12 (2017) (rejecting the
argument that an evidentiary hearing was required concerning a motion in
a capital case). The Mathews test, which we approved in the parental rights
severance context in Kent K. v. Bobby M., 210 Ariz. 279, 285 ¶ 29 (2005),
requires courts to consider three factors in assessing whether procedural
due process requires additional safeguards such as an evidentiary hearing:
(1) the private interest affected; (2) “the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards”; and (3) “the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural


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                   SAMIUDDIN V. NOTHWEHR (STATE)
                         Opinion of the Court

requirement would entail.” Id. at 286 ¶ 33 (quoting Mathews, 424 U.S. at
335).

¶21           Here, under the first Mathews factor—the private interest
affected—we acknowledge that the pretrial release conditions restraining
Samiuddin’s contact with his children implicate his fundamental liberty
interest in the care, custody and control of his children, but that
infringement is less than in dependency and severance cases because the
speedy-trial rules limit the pretrial release conditions to the duration of the
criminal case and their objective is not to interfere with, or sever, his
parental rights. Further, the second and third Mathews factors, as discussed
below, indicate that there is no general right to an evidentiary hearing in
this context.

¶22            The second factor—the risk of error due to procedural
inadequacies—does not advance Samiuddin’s cause. Rule 7.3(b) provides
Samiuddin sufficient due process safeguards and poses minimal risk of
error because he was assisted by an attorney and a translator, timely heard
before a neutral judge, permitted to argue, and, pursuant to Rule 7.4(c),
offered information otherwise inadmissible under evidentiary rules, much
as he would in an evidentiary hearing. In fact, contrary to Samiuddin’s
claim that he was deprived of an opportunity to be heard, on rehearing of
his release conditions, the trial court relaxed Samiuddin’s pretrial
restrictions to allow him supervised visits with his children.

¶23            Finally, the third factor—the state’s interests—does not
convince us that due process requires an evidentiary hearing. Samiuddin
concedes the state’s compelling interest in protecting his children, the trial
court is required to fashion release conditions that will ensure public safety,
and we are not persuaded that the value of an additional tier of judicially-
mandated evidentiary hearings outweighs the state’s increased fiscal and
administrative burdens borne of additional litigation.

              C.     Individualized Determination

¶24            As noted above, Arizona rules require a trial court to impose
“the least onerous condition or conditions . . . that are reasonable and
necessary to protect other persons or the community from risk posed by the
person or to secure the appearance of the person in court.” Ariz. R. Crim.
P. 7.2(a). Discerning the “least onerous” release condition “reasonable and

                                      10
                  SAMIUDDIN V. NOTHWEHR (STATE)
                        Opinion of the Court

necessary” to protect the public necessarily requires the judge to make an
individualized determination. Cf. Simpson II, 241 Ariz. at 349 ¶ 31 (holding
that “categorically denying bail for all persons charged with sexual conduct
with a minor” is unconstitutional and, instead, an individualized
determination is required). The “individualized determination” is a “case-
specific inquiry” into the future dangerousness of the accused, which
ensures the release condition comports with due process. See id.; cf. Wolf
Child, 699 F.3d at 1092–93 (stating that, pursuant to 18 U.S.C. § 3583(d), to
satisfy an “enhanced procedural requirement” when placing a “restrictive
condition on the exercise of a particularly significant liberty interest,” a
court “must itself point to the evidence in the record on which it relies”).

¶25           We hold that due process and, by implication, Rules 7.2(a)
and 7.3(b), require the trial court to make an individualized determination
in setting discretionary pretrial release conditions that restrict parents’
access to their minor non-victim children. Consistent with due process
standards, a defendant has a right to be heard “at a meaningful time and in
a meaningful manner,” Mathews, 424 U.S. at 333, but a trial court is not
generally required to conduct an evidentiary hearing. Nor is the trial court
required to find evidence of actual harm to a minor non-victim child as a
prerequisite to imposing a condition restricting contact; such a requirement
would undermine the prophylactic value in release conditions fashioned to
protect the community, including defendants’ minor children. The trial
court must, however, make findings and articulate its reasoning for
determining that the condition is the least onerous measure reasonable and
necessary to mitigate an identifiable risk of harm.

¶26          However, we do not reach Samiuddin’s argument that the
conditions imposed here are more restrictive than necessary to meet the
State’s compelling interest in protecting his children, because we cannot
assess whether the conditions are the least onerous measures in the absence
of a complete record and an individualized determination.

                           CONCLUSION

¶27         Because we lack an adequate record on which to review
whether the trial court’s pretrial release conditions comply with newly
promulgated Rules 7.2(a) and 7.3(b) and are based on an individualized
determination, we grant relief to Samiuddin by vacating those conditions


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                SAMIUDDIN V. NOTHWEHR (STATE)
                      Opinion of the Court

and directing the trial court to consider anew any appropriate pretrial
release conditions.




                                  12
