                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                THEODORE JAMES PANOS, Appellant.

                         No. 1 CA-CR 15-0065
                           FILED 1-12-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-112450-001
             The Honorable Margaret R. Mahoney, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant



                              OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
                             STATE v. PANOS
                            Opinion of the Court

J O N E S, Judge:

¶1            Theodore Panos challenges the superior court’s imposition of
a monthly probation service fee as a condition of his unsupervised
probation. Panos argues Arizona Revised Statutes (A.R.S.) section 13-
901(A),1 which requires the fee, is unconstitutional under both the U.S. and
Arizona Constitutions. For the reasons that follow, we find the statute to
be constitutional and affirm the imposition of the fee.

                    FACTS AND PROCEDURAL HISTORY

¶2            The State initially charged Panos in the superior court with
two class six felonies: possession or use of marijuana in violation of A.R.S.
§ 13-3405(A)(1) and possession of drug paraphernalia in violation of A.R.S.
§ 13-3415(A). The State later moved to designate both counts as class one
misdemeanors. The court granted the motion and, following a bench trial,
found Panos guilty as to each count. The court sentenced Panos to two
concurrent terms of nine months’ unsupervised probation and, as a
condition of probation, ordered Panos to pay a monthly probation service
fee of sixty-five dollars pursuant to A.R.S. § 13-901(A). Panos timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
-2101(A)(1), 13-4031, and -4033(A)(4).

                               DISCUSSION

¶3            The probation statute provides in relevant part: “When
granting probation to an adult the court, as a condition of probation, shall
assess a monthly fee of not less than sixty-five dollars.” A.R.S. § 13-901(A).2
For probation imposed in the superior court, A.R.S. § 13-901(A) makes no
distinction between supervised and unsupervised probation. For probation
imposed in a justice or municipal court, however, “the fee shall only be
assessed when the person is placed on supervised probation.” Id.

¶4           All such probation service fees paid into the superior, justice,
and municipal courts are ultimately deposited into the “adult probation
services fund” and “used to supplement monies used for the salaries of


1     Absent material changes from the relevant date, we cite a statute’s
current version.

2      The superior court may impose a lesser fee if it determines the
probationer is unable to pay the full amount, a circumstance Panos does not
claim applies here. A.R.S. § 13-901(A).

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                              STATE v. PANOS
                             Opinion of the Court

adult probation and surveillance officers and for support of programs and
services of the superior court adult probation departments.” Id.; see also
Ariz. Code of Jud. Admin. § 6-206(C) (“The probation fees account within
the adult probation services fund is to be used to pay probation employee
salaries and employee-related benefits and to otherwise improve, maintain,
or expand adult probation services within the county.”).

¶5             Panos argues A.R.S. § 13-901(A) violates (1) the equal
protection guarantees found in the Fourteenth Amendment to the U.S.
Constitution, and Article 2, Section 13, of the Arizona Constitution; and (2)
Article 4, Part 2, Section 19(7), of the Arizona Constitution, which prohibits
“special laws” for “[p]unishment of crimes and misdemeanors.”
Interpretation of a statute is a question of law, which we review de novo. See
Zamora v. Reinstein, 185 Ariz. 272, 275 (1996) (citing Canon Sch. Dist. No. 50
v. W.E.S. Constr. Co., 177 Ariz. 526, 529 (1994)). “[W]e have an obligation to
interpret statutes so as to uphold their constitutionality, where possible,”
State v. Getz, 189 Ariz. 561, 565 (1997) (citing Business Realty of Ariz., Inc. v.
Maricopa Cnty., 181 Ariz. 551, 559 (1995)), and we strongly presume a statute
to be constitutional, State v. Tocco, 156 Ariz. 116, 119 (1988) (citing State v.
Ramos, 133 Ariz. 4, 6 (1982)). The challenger of a statute’s constitutionality
bears the burden to prove it is unconstitutional. Tocco, 156 Ariz. at 119
(citing Eastin v. Broomfield, 116 Ariz. 576, 580 (1977)).

I.     Equal Protection

¶6            Panos argues A.R.S. § 13-901(A) violates state and federal
guarantees of equal protection because it requires unsupervised
probationers convicted in superior court to pay a monthly probation service
fee, yet exempts unsupervised probationers convicted in justice or
municipal courts. Panos argues that all unsupervised probationers are
“similarly situated,” regardless of the court of conviction, and that the
statute discriminates against unsupervised probationers convicted in the
superior court. He asserts that any distinction made regarding the courts
of conviction is arbitrary, capricious, and discriminatory.

¶7            The effects of the federal and state equal protection
guarantees “are essentially the same,” State v. Lowery, 230 Ariz. 536, 541,
¶ 13 (App. 2012) (quoting State v. Bonnewell, 196 Ariz. 592, 596, ¶ 15 (App.
1999)), each generally requiring the law treat all similarly situated persons
alike, Vong v. Aune, 235 Ariz. 116, 123, ¶ 32 (App. 2014) (quoting
Wigglesworth v. Mauldin, 195 Ariz. 432, 438, ¶ 19 (App. 1999)). These
guarantees do not prohibit all classification of persons, however, but only




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                              STATE v. PANOS
                             Opinion of the Court

those which are “unreasonable.” Lowery, 230 Ariz. at 541, ¶ 13 (citing
Schecter v. Killingsworth, 93 Ariz. 273, 281 (1963)).

¶8             Because Panos concedes he is not a member of a suspect class
and there is no fundamental right at issue, we will uphold the statute so
long as it is “rationally related to a legitimate government purpose.” Id.
(quoting State v. Navarro, 201 Ariz. 292, 298, ¶ 25 (App. 2001), and citing
Governale v. Lieberman, 226 Ariz. 443, 448, ¶ 13 (App. 2011)). The rational
basis test does not require the legislature to choose “the least intrusive, nor
most effective, means of achieving its goals.” State v. Hammonds, 192 Ariz.
528, 532, ¶ 15 (App. 1998) (citing Ohio Bureau of Emp’t Servs. v. Hodory, 431
U.S. 471, 491 (1977)). Nor does it require “[a]bsolute equality and complete
conformity of legislative classifications.” City of Tucson v. Grezaffi, 200 Ariz.
130, 137, ¶ 18 (App. 2001) (quoting Rossie v. State, 395 N.W.2d 801, 807 (Wis.
Ct. App. 1986)). Thus, “[e]ven if the classification results in some inequality,
it is not unconstitutional if it rests on some reasonable basis.” Fisher v.
Edgerton, 236 Ariz. 71, 80, ¶ 28 (App. 2014) (quoting Church v. Rawson Drug
& Sundry Co., 173 Ariz. 342, 351 (App. 1992)).

¶9            In sum, the challenger of a statute’s constitutionality may
overcome a presumption that the statute is rational “only by a clear
showing of arbitrariness or irrationality.” Hammonds, 192 Ariz. at 531, ¶ 9
(citing Lerma v. Keck, 186 Ariz. 228, 233 (App. 1996)). Only if a statute is
“‘wholly irrelevant’ to the achievement of a legitimate governmental
objective” will it violate equal protection. Id. at 532, ¶ 15 (quoting McGowan
v. Maryland, 366 U.S. 420, 425 (1961)); see also Ariz. Downs v. Ariz. Horsemen’s
Found., 130 Ariz. 550, 557 (1981) (noting statutes with a “conceivable
rational basis” that further a legitimate governmental interest will be
upheld); Church, 173 Ariz. at 350 (noting courts may “consider ‘either the
actual basis on which the legislature acted or any hypothetical basis on
which it might have acted’”) (quoting Carr v. Beech Aircraft Corp., 758 F.
Supp. 1330, 1334 (D. Ariz. 1991)).

¶10           Applying these standards, we conclude the statute to be
constitutional. Arizona law requires that the presiding judge of each
county’s superior court appoint a chief adult probation officer who, “with
the approval of the presiding judge of the superior court, shall appoint
deputy adult probation officers and support staff as . . . necessary.” A.R.S.
§ 12-251(A). The officers and other staff have extensive duties including the
provision of services to and supervision of those convicted and placed on
probation. See A.R.S. §§ 12-251(A), -253. The purpose of the fee is to help
pay for the services probation officers and staff provide and to maintain,
expand, and improve those services. A.R.S. § 13-901(A); Ariz. Code Jud.


                                       4
                            STATE v. PANOS
                           Opinion of the Court

Admin. § 6-209. Further, the fees deposited into the probation fund
strengthen “the criminal justice system’s ability to finance its probation
services” and benefit a defendant’s rehabilitation. State v. Mears, 134 Ariz.
95, 98 (App. 1982). We therefore conclude the probation service fee
requirements and exemptions contained in A.R.S. § 13-901(A) are rationally
related to, and help achieve, a legitimate governmental objective.

¶11           That the term of probation imposed by the superior court on
a defendant may be “unsupervised” is irrelevant. Conditions of Panos’
probation require him to report to the adult probation department at
specified times and continue to report as directed, advise the department
when he completes various conditions of probation, notify the department
of various changes in his status, participate in a drug education program or
provide community service, and undergo any other substance abuse
treatment or counseling the department orders. He thus requires services
and monitoring — costs incurred by the county’s probation department
which he may rationally be required to reimburse.

¶12            Additionally, there is a rational explanation for unsupervised
probationers from justice and municipal courts not being assessed the fee:
these courts are not statutorily required to pay for separate probation
services. Rather, these courts may contract for such services to be provided
to supervised probationers by the superior court’s probation department.
See A.R.S. § 12-251(A) (permitting probation services to “be provided by a
county probation office to a municipal court through an intergovernmental
agreement entered into by the respective county and municipality”); Ariz.
Code Jud. Admin. § 6-209(D) (same), (E) (requiring a written agreement
between limited jurisdiction courts and probation departments outlining
the specific services the probation department will provide and the cost of
those services). In the absence of such an agreement, justice or municipal
courts may provide their own form of probation services. Under this
circumstance, the superior court probation department provides no
services nor otherwise incurs expense as a result of a justice or municipal
court’s order of unsupervised probation, and it is reasonable for the
legislature to exempt those probationers from the payment of a fee
expressly designed to help reimburse and support the superior court’s
probation department.

¶13          These distinctions likewise dictate that Panos has failed to
establish unsupervised probationers convicted in the superior, justice, or
municipal courts are all similarly situated; unsupervised probationers
whose convictions cause a superior court probation department to provide



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                             STATE v. PANOS
                            Opinion of the Court

services and incur expenses are not similarly situated with unsupervised
probationers whose convictions do not.

¶14            Although the direction provided within A.R.S. § 13-901(A)
may not result in absolute equality or complete conformity of legislative
classifications, as noted above, neither is required under the equal
protection guarantees of our constitutions. The probation service fees and
fee exemptions in A.R.S. § 13-901(A) are rationally related to a legitimate
governmental objective. Accordingly, imposing the monthly probation
service fee upon an unsupervised probationer does not violate equal
protection.

II.    Special Laws

¶15            Panos next argues A.R.S. § 13-901(A) violates Article 4, Part 2,
Section 19(7), of the Arizona Constitution because it constitutes a “special
law” for “[p]unishment of crimes and misdemeanors.” Special laws favor
one person or group over others by “granting them a special or exclusive
immunity, privilege, or franchise.” Ariz. Downs, 130 Ariz. at 557; see
Gallardo v. State, 236 Ariz. 84, 88, ¶ 10 (2014) (citing Republic Inv. Fund I v.
Town of Surprise, 166 Ariz. 143, 148-49 (1990)). Panos argues A.R.S. § 13-
901(A) grants such privilege or immunity to unsupervised probationers
convicted in justice and municipal courts by exempting them from the
monthly probation service fee.

¶16           A law is permissible, if it meets the following criteria:

       (1) [T]he law must have “a rational relationship to a legitimate
       legislative objective,” (2) the classification the law makes must
       be legitimate, encompassing all members that are similarly
       situated, and (3) the classification must be elastic, allowing
       “other individuals or entities to come within” and move out
       of the class.

Gallardo, 236 Ariz. at 88, ¶ 11 (quoting Republic Inv., 166 Ariz. at 149). In
applying these criteria, we conclude A.R.S. § 13-901(A) does not
unconstitutionally favor unsupervised probationers convicted in justice or
municipal courts.

¶17            The first two criteria are met for the reasons discussed in Part
I. The probation service fees and exemptions in A.R.S. § 13-901(A) have a
rational relationship to a legitimate governmental objective: providing and
financing probation services. See supra ¶¶ 10-12. And, A.R.S. § 13-901(A)
legitimately distinguishes between unsupervised probationers convicted in


                                       6
                             STATE v. PANOS
                            Opinion of the Court

superior courts and unsupervised probationers convicted in justice or
municipal courts. As noted above, unsupervised probationers convicted in
the superior court still require the services of the superior court’s probation
department and thereby generate associated expenses for those services.
Unsupervised probationers in justice and municipal courts without
agreements for adult probation services do not. See supra ¶ 13.

¶18            Finally, the classification contained in A.R.S. § 13-901(A) is
elastic. Elasticity is established “when the statute looks to broader
application in the future, no matter how imminent the application might
be, and allows ‘persons, places, or things attaining the requisite
characteristics’ to enter and those that ‘no longer have those characteristics’
to leave the class.” Gallardo, 236 Ariz. at 93, ¶ 35 (quoting Republic Inv., 166
Ariz. at 150, and citing Luhrs v. City of Phx., 52 Ariz. 438, 451 (1938), and
Long v. Napolitano, 203 Ariz. 247, 258, ¶ 38 (App. 2002)). As relevant here,
any person may enter the class required to pay a monthly probation service
fee under A.R.S. § 13-901(A) by becoming a probationer convicted in an
Arizona court where a defendant’s conviction requires utilization of the
county’s probation services department, and every person in the class of
those paying a monthly probation service fee may leave the class by no
longer being a probationer. See id. at ¶ 36 (finding elasticity requirement
was met where counties can join the class by attaining a population size set
forth in the statute and leave the class when the population falls below the
stated size). That the crime one commits to gain entry into the class may
also allow entry into another class, depending upon the nature of the court
where probation is imposed, is irrelevant. The statute is “facially and
functionally elastic,” id., and nothing about the law otherwise inhibits the
entry into or exit from the class of persons required to pay a monthly
probation service fee.

                               CONCLUSION

¶19            Because A.R.S. § 13-901(A) does not violate equal protection
and is not a special law, we conclude it is constitutional under both the U.S.
and Arizona Constitutions and affirm the superior court’s imposition of the
monthly probation service fee.




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