                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                         JAMES FELIX MORRENO,
                               Petitioner,

                                   v.

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

    STATE OF ARIZONA EX REL. WILLIAM G. MONTGOMERY, MARICOPA
                        COUNTY ATTORNEY,
                        Real Party in Interest.


                          No. CV-17-0193-SA
                           Filed May 2, 2018


       Special Action from the Superior Court in Maricopa County
             The Honorable Nicole Brickner, Commissioner
                          No. CR 2016-107138
                          No. CR 2016-130854
                              AFFIRMED


              Order of the Court of Appeals, Division One
                         No. 1 CA-SA 17-0143

COUNSEL:

James J. Haas, Maricopa County Public Defender, Brian Thredgold
(argued), Timothy Sparling, Rachel A. Golubovich, Deputy Public
Defenders, Phoenix, Attorneys for James Felix Morreno

William G. Montgomery, Maricopa County Attorney, Amanda M. Parker
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona
                MORRENO V. HON. BRICKNER/STATE
                      Opinion of the Court

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Rusty D. Crandell, Assistant Solicitor General, Phoenix, Attorneys
for Arizona Attorney General


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


VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶1            Article 2, section 22(A)(2), of the Arizona Constitution (“the
On-Release provision”) precludes bail “[f]or felony offenses committed
when the person charged is already admitted to bail on a separate felony
charge and where the proof is evident or the presumption great as to the
present charge.” We hold that, on its face, the On-Release provision
satisfies heightened scrutiny under the Fourteenth Amendment’s Due
Process Clause.

                                   I.

¶2           James Morreno was indicted for possession of marijuana and
possession of drug paraphernalia, both felonies, in March 2016. After his
initial appearance in that case, Morreno was released on his own
recognizance. As a condition of his release, Morreno was ordered to
“refrain from committing any criminal offense.”

¶3           In May, the police received reports of a suspicious person and
contacted Morreno. He admitted possessing marijuana and a marijuana
pipe and was again charged with felony possession of marijuana and
possession of drug paraphernalia. His initial appearance in that case was
scheduled for July, but Morreno failed to appear and an arrest warrant was
issued.

¶4            Morreno was arrested in 2017 and held without bail pursuant
to the On-Release provision. Relying on Simpson v. Miller (Simpson II), 241
Ariz. 341 (2017), he moved to modify his release conditions and argued that
the On-Release provision was facially invalid because it deprived him of a
pre-detention individualized determination of future dangerousness to


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                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

which he was constitutionally entitled. The superior court disagreed and
denied the motion.

¶5            Morreno filed a petition for special action, which the court of
appeals stayed pending this Court’s decision on whether to grant review in
a similar case. Thereafter, Morreno filed a petition for review in this Court
challenging the superior court’s ruling and the court of appeals’ stay order.

¶6            Although Morreno has since pleaded guilty to the charged
offenses in both cases (rendering his constitutional challenge moot as
applied to him), we granted review to address the facial constitutionality of
the On-Release provision, a recurring issue of statewide importance. We
have jurisdiction under article 6, section 5(3), of the Arizona Constitution.

                                    II.

¶7            We review de novo the validity of the On-Release provision.
See Simpson II, 241 Ariz. at 344 ¶ 7.

¶8            In 1970, Arizona voters passed Proposition 100, and thereby
amended the state constitution, adding among other things the On-Release
provision. See Ariz. Const. art. 2, § 22(A)(2); see also Ariz. Sec’y of State,
Referendum       and     Initiative   Publicity     Pamphlet     2–4   (1970),
http://azmemory.azlibrary.gov/cdm/compoundobject/collection/statep
ubs/id/10654. Under that provision, a defendant charged with a felony
allegedly committed while “already admitted to bail on a separate felony
charge” is ineligible for bail “where the proof is evident or the presumption
great as to the [new] charge.” Ariz. Const. art. 2, § 22(A)(2). A defendant
like Morreno who was released on his own recognizance on a prior charge
“has been ‘admitted to bail’ for purposes of [the On-Release provision].”
Heath v. Kiger, 217 Ariz. 492, 493 ¶ 1 (2008).

¶9           Throughout the briefing in this Court and below, Morreno
framed his argument as a facial challenge to the On-Release provision. At
oral argument in this Court, Morreno initially confirmed that position
before contending that the provision is unconstitutional as applied to him.
We consider only the facial challenge because Morreno’s guilty plea renders




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                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

moot any as-applied challenge. 1

                                   III.

¶10            Morreno’s challenge to the On-Release provision requires us
to revisit the delicate balance between “state interests of the highest order”
and “the fundamental due process right to be free from bodily restraint.”
Simpson II, 241 Ariz. at 345 ¶ 9.

¶11            Our court of appeals has upheld and applied the On-Release
provision against constitutional attack. See State ex rel. Romley v. Superior
Court, 185 Ariz. 160, 164 (App. 1996) (ordering the defendant “to be held
without bond pending trial” when proof was evident and presumption
great that he committed a felony while released on bail on prior charge);
State v. Garrett, 16 Ariz. App. 427, 429 (1972) (same, and finding the
On-Release provision’s purpose and policy “entirely reasonable”).
Morreno argues that those cases do not survive Simpson II and that the
On-Release provision “deprives defendants of due process because it fails
to comport with” our opinion in that case. Under Simpson II, he contends,
bail “cannot be denied without a showing of [future] dangerousness
following an individualized adversarial hearing” under A.R.S.
§ 13-3961(D), and not before considering various factors such as those set
forth in A.R.S. § 13-3967(B). The State, in contrast, argues that the
On-Release provision is constitutional under Simpson II because it is “not
offense-based,” but is instead “status-based” and narrowly focused on
“recidivistic tendencies.”

¶12           Before evaluating these arguments, we first address the
Attorney General’s assertion that “Simpson II was incorrect” and should be
overruled “to the extent that it misapplies the facial challenge and
substantive due process tests from United States v. Salerno, 481 U.S. 739
(1987).” Echoing an argument we rejected in Simpson II, the Attorney
General contends that this Court misapplied the standard for evaluating
facial challenges and erroneously pronounced a “heightened scrutiny
standard for due process challenges to bail restrictions.” Justice Gould’s

1  We similarly do not address Morreno’s contention that the On-Release
provision conflicts with Proposition 200, adopted by Arizona voters in 1996
and codified in A.R.S. § 13-901.01, which requires probation in limited
circumstances for those convicted of certain crimes involving the
possession or use of marijuana or drug paraphernalia.


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                  MORRENO V. HON. BRICKNER/STATE
                        Opinion of the Court

partial dissent mirrors those contentions, with which we disagree.

¶13            In Simpson II, we applied a “heightened scrutiny” standard
derived from Salerno to hold that the Fourteenth Amendment’s Due Process
Clause prohibits the state from automatically denying bail to all defendants
charged with sexual conduct with a minor under age fifteen. Simpson II,
241 Ariz. at 344 ¶ 1, 348 ¶ 23. In so holding, this Court invalidated the
no-bail provisions in article 2, section 22(A)(1), of the Arizona Constitution
and A.R.S. § 13-3961(A)(3) as they related to that charged offense, and we
rejected the State’s argument that “the challenged provisions [were not]
unconstitutional on their face because they may not be unconstitutional in
all instances.” Simpson II, 241 Ariz. at 349 ¶ 31.

¶14            In Simpson II, we recognized that a party challenging a law as
facially unconstitutional “must establish that it ‘is unconstitutional in all of
its applications.’” 241 Ariz. at 344–45 ¶ 7 (quoting City of Los Angeles v. Patel,
135 S. Ct. 2443, 2451 (2015)); see also Salerno, 481 U.S. at 745 (stating that a
successful facial challenge requires “the challenger [to] establish that no set
of circumstances exists under which the [law] would be valid”). We also
recognized that in some instances the commission of sexual conduct with a
minor “may indicate a threat of future dangerousness toward the victim or
others.” Simpson II, 241 Ariz. at 349 ¶ 31. That was not determinative,
however, because the offense of sexual conduct with a minor “is not
inherently predictive of future dangerousness,” and therefore “detention
[in those cases] requires a case-specific inquiry.” Id.

¶15            Simpson II does not contradict Salerno or the other cases on
which the Attorney General and Justice Gould’s dissent rely. Salerno
rejected a facial challenge to the 1984 Bail Reform Act because of its
“extensive safeguards,” which required not only a showing of probable
cause for the charged offense, but also a showing “by clear and convincing
evidence that no conditions of release can reasonably assure the safety of
the community or any person.” 481 U.S. at 750, 752 (citing 18 U.S.C.
§ 3142(f)). The provisions at issue in Simpson II, in contrast, lacked any such
safeguards and by their terms categorically denied bail to all defendants
charged with sexual conduct with a minor under age fifteen — a crime that
does not inherently predict future dangerousness. 241 Ariz. at 349 ¶ 27.
Thus, a facial challenge succeeded because the no-bail provisions deprived
such defendants of what substantive due process requires: an
individualized determination of, or a valid proxy for, future
dangerousness. Id. ¶ 30.


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                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

¶16           That some defendants who are charged with sexual conduct
with a minor may properly be denied bail when other facts are present (i.e.,
evidence of future dangerousness or flight risk) does not defeat a facial
challenge. See id. ¶ 31 (noting that in arguing against a facial challenge, the
State “confus[ed] the constitutionality of detention in specific cases with the
requirement that it be imposed in all cases”). The facial challenge was to
the denial of bail based merely on the charge without considering other
facts that may — or may not — justify denying a defendant bail in a
particular case.

¶17            Patel illustrates this point well. There, the government —
much like the State here — argued that a statute should not be subject to a
facial challenge because in some circumstances the conduct it authorized
would be constitutionally permissible (there, a search of hotel guest
records; here, pretrial detention). Patel, 135 S. Ct. at 2450–51. The United
States Supreme Court rejected that argument, noting that “the proper focus
of the constitutional inquiry is searches that the law actually authorizes, not
those for which it is irrelevant.” Id. at 2451.

¶18             Based on due process principles, the Court likewise has
invalidated other laws that categorically denied important, protected
interests without regard to individual circumstances. In Stanley v. Illinois,
for example, the Court struck a state law under which “the children of
unwed fathers became wards of the State upon the death of the mother.”
405 U.S. 645, 646 (1972). Rejecting the law’s “blanket exclusion” that
“viewed people one-dimensionally,” the Court concluded that, “as a matter
of due process of law, [the father] was entitled to a hearing on his fitness as
a parent before his children were taken from him.” Id. at 649, 655. And
though recognizing the possibility that “most unmarried fathers are
unsuitable and neglectful parents” and that Mr. Stanley was “such a parent
and that his children should be placed in other hands,” the Court
nonetheless noted that “all unmarried fathers are not in this category; some
are wholly suited to have custody of their children.” Id. at 654.
Accordingly, the law could not stand because it “needlessly risk[ed]
running roughshod over the important interests of both parent and child.”
Id. at 657; cf. Foucha v. Louisiana, 504 U.S. 71, 81–83 (1992) (distinguishing
Salerno and finding unconstitutional a state statute under which a
defendant found not guilty by reason of insanity was committed
indefinitely to a psychiatric hospital unless he proved that he was not
dangerous).



                                      6
                  MORRENO V. HON. BRICKNER/STATE
                        Opinion of the Court

¶19           Here, that some defendants may properly be held without
bail when they commit an offense while “on-release” — for example,
pursuant to article 2, section 22(A)(3) — does not mean (as the Attorney
General suggests) that the On-Release provision necessarily survives a
facial challenge. We therefore decline his invitation to overrule or limit
Simpson II.

¶20            Justice Gould’s partial dissent is unpersuasive for several
reasons. It selectively relies on portions of Salerno in describing the
standard for finding a law facially unconstitutional but disregards key
features of the Bail Reform Act that, as discussed, see supra ¶ 15, were critical
to Salerno’s analysis and conclusion. See also United States v. Stephens, 594
F.3d 1033, 1038 (8th Cir. 2010) (noting that Salerno “lauded the Bail Reform
Act’s procedures”). As Salerno observed, the Bail Reform Act required
individualized hearings in which “the Government [had to] convince a
neutral decisionmaker by clear and convincing evidence that no conditions
of release can reasonably assure the safety of the community or any
person.” 481 U.S. at 750. The dissent overlooks the Salerno Court’s
analytical emphasis that the Act contained those important “procedural
protections” and “narrowly focuse[d] on a particularly acute problem,” id.
at 750–52, features that were critical to its holding, id. at 751. It was only
those “narrow circumstances” and the Act’s “extensive [procedural]
safeguards” that “suffice[d] to repel a facial challenge.” Id. at 752. Nothing
in Salerno suggests that the Court would have upheld the Act against a
facial challenge even absent those safeguards, all of which were lacking in
Simpson II. See supra ¶ 15.

¶21            The dissent’s failure to recognize these key aspects of Salerno,
in turn, causes it to incorrectly assert that Simpson II deviated from Salerno
and to mischaracterize Simpson II as applying an “overbreadth analysis.”
See infra ¶¶ 39, 48. The provisions at issue in Simpson II were facially invalid
because they did not — indeed, could not — afford any defendant what
due process requires: an individualized hearing or a convincing proxy for
future dangerousness. The mere charge itself was not a convincing proxy
for future dangerousness, and therefore not narrowly focused, because it
swept in situations that are not predictive of future dangerousness. Simpson
II, 241 Ariz. at 349 ¶ 27; see also Salerno, 481 U.S. at 750 (noting that the Bail
Reform Act required “convincing proof that the arrestee, already indicted or
held to answer for a serious crime, presents a demonstrable danger to the
community” (emphasis added)). Thus, Simpson II did not misapply the



                                        7
                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

Salerno facial standard but instead comports with Salerno’s analysis. See
United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2006) (“Neither Salerno nor
any other case authorizes detaining someone in jail while awaiting trial, or
the imposition of special bail conditions, based merely on the fact of arrest
for a particular crime.”).

¶22            The dissent seemingly equates every facial challenge with an
overbreadth challenge, which misapprehends those distinct doctrines. In
essence, the dissent’s quarrel with Simpson II is not with its application of
Salerno’s standard for facial unconstitutionality, but with its application of
Salerno’s “narrow focus” standard. Simpson II’s application of that standard
is consistent with Salerno’s ultimate holding: “When the Government
proves by clear and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the community, we
believe that, consistent with the Due Process Clause, a court may disable
the arrestee from executing that threat.” Salerno, 481 U.S. at 751. Again, the
Bail Reform Act in Salerno had numerous narrowing features that the
provisions in Simpson II lacked. Key among these are a “careful delineation
of the circumstances under which detention will be permitted” and
“convincing proof that the arrestee . . . presents a demonstrable danger to
the community.” Salerno, 481 U.S. at 750–51.

¶23             Here, Morreno’s facial challenge under Salerno is based on his
argument that it is never constitutionally permissible to detain a person
without bail based merely on proof evident or presumption great that the
person committed a felony while “on-release” from another felony charge.
Although we ultimately reject that argument for the reasons stated below,
it still is properly considered a facial challenge. Under Patel, which the
dissent does not convincingly address, the facial challenge is not barred by
the fact that a person might be legally detained for reasons in addition to
those required by the On-Release provision. See State v. Ryce, 368 P.3d 342,
354 (Kan. 2016) (“Patel emphasizes that the scope of circumstances we
examine is determined and limited by the application of the statute—we do
not consider the entire universe of possible scenarios, we must instead look
to the circumstances actually affected by the challenged statute.”). To be
sure, the dissent’s arguments here echo Justice Alito’s dissent in Patel, but
the Patel majority rejected Justice Alito’s approach, and we likewise reject
the dissent’s mistaken view of Simpson II.




                                      8
                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

                                   IV.

¶24            The Due Process Clause places significant limitations on the
state’s ability to detain a defendant charged with violating the law. See
Simpson II, 241 Ariz. at 346 ¶ 13. In Simpson II, we explained that to meet
constitutional standards, a pretrial detention scheme “may be used only for
regulatory rather than punitive purposes” and must satisfy the rigors of
“heightened scrutiny” under the Due Process Clause, requiring that the
scheme be “narrowly focused on accomplishing the government’s
objective.” Id. at 346 ¶ 13, 348 ¶¶ 23, 25. The On-Release provision meets
these demands.

                                     A.

¶25           We look to legislative intent (or here the intent of Arizona
voters) to determine whether a pretrial detention scheme is punitive or
regulatory. Id. at 347 ¶ 20. The 1970 publicity pamphlet for Proposition 100
indicates that the purpose of the proposed amendment was to address the
“rapidly increasing crime rate in Arizona” caused by “repeat offenders . . .
who continue their lives of crime while out on bail, awaiting trial.” Ariz.
Sec’y of State, Referendum and Initiative Publicity Pamphlet 3 (1970),
http://azmemory.azlibrary.gov/cdm/compoundobject/collection/statep
ubs/id/10654; see also Heath, 217 Ariz. at 496 ¶ 14 (recognizing Proposition
100’s “purpose is to prevent those charged with felonies but released
pending trial from committing additional crimes”).

¶26            There is no indication that the number of people denied bail
under the On-Release provision is excessive in relation to that goal. Indeed,
the provision applies only when strong evidence (more than probable
cause) exists that a defendant committed another felony while on release
from a prior felony charge. See Simpson v. Owens (Simpson I), 207 Ariz. 261,
274 ¶ 40 (App. 2004); see also Simpson II, 241 Ariz. at 346 ¶ 16. We therefore
conclude, and Morreno does not specifically contest, that the On-Release
provision is regulatory. See Simpson II, 241 Ariz. at 347 ¶ 20, 348 ¶ 24
(concluding that the challenged provisions “are regulatory, not punitive,
and therefore do not constitute a per se due process violation” when “[a]ll
ballot arguments supporting Proposition 103 focused on protecting public
safety by preventing additional crimes,” and noting that those state
interests are “‘both legitimate and compelling’” (quoting Salerno, 481 U.S.
at 749)).



                                      9
                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

                                      B.

¶27           “Heightened scrutiny” under the Due Process Clause ensures
that, absent “special circumstances,” the government does not “restrain
individuals’ liberty prior to . . . criminal trial and conviction.” Salerno, 481
U.S. at 749. To satisfy heightened scrutiny’s rigors, the state’s interest in
enforcing a pretrial detention scheme must be “legitimate and compelling,”
and the scheme must be “narrowly focuse[d] on a particularly acute
problem.” Simpson II, 241 Ariz. at 348 ¶ 23 (alteration in original) (internal
quotation marks omitted) (quoting Salerno, 481 U.S. at 749–50).

¶28            Morreno contends that Simpson II controls here, such that
“[a]rticle 2, § 22(A)(2) is unconstitutional under the Due Process Clause”
because “the State cannot hold [him] in custody without bond unless it first
demonstrates [his] future dangerousness.” In his view, the On-Release
provision is a “hard-line,” categorical denial of bail that fails to provide
what due process requires: a pre-detention adversarial hearing of the type
provided for in A.R.S. §§ 13-3961(D) and 13-3967(B).

¶29             We disagree. Although Simpson II guides our analysis, it is
not dispositive of the very different provision at issue here and does not
require an individualized determination of dangerousness in every case to
comply with due process principles. See 241 Ariz. at 348 ¶ 26 (“[W]e do not
read Salerno or other decisions to require . . . individualized determinations
in every case.”). And despite Morreno’s attempt to liken the On-Release
provision to the constitutional and statutory provisions at issue in Simpson
II, there are important differences. Unlike the sexual-conduct-with-a-minor
provisions involved in Simpson II, the On-Release provision does not
categorically deny bail to all defendants accused of committing enumerated
crimes. Thus, unlike Simpson II, the issue here is not whether a particular
charged offense is “in itself a proxy for dangerousness,” id. at 349 ¶ 27, or
for unmanageable flight risk, id. at 346 ¶ 17. Rather, the issues are twofold:
whether the state has a “legitimate and compelling” interest in preventing
defendants from committing new felonies while on pretrial release from
another felony charge, and whether denying bail to such a defendant (when
the proof is evident or the presumption great he or she committed a new
felony while on release from another felony charge) is “narrowly focuse[d]”
on pursuing that goal. Id. at 348 ¶ 23 (quoting Salerno, 481 U.S. at 749–50).

¶30            “The government’s interest in preventing crime by arrestees
is both legitimate and compelling.” Salerno, 481 U.S. at 749; accord Schall v.


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                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

Martin, 467 U.S. 253, 264 (1984) (rejecting due process challenge to statute
that permitted pretrial detention of any juvenile arrested on any charge
after a showing that the person might commit some undefined future
crimes). The On-Release provision implicates that interest. Likewise, the
state unquestionably has a legitimate and compelling interest in preventing
defendants from committing new crimes while on pretrial release from
prior criminal charges. See Rummel v. Estelle, 445 U.S. 263, 276 (1980)
(providing that states have a legitimate interest “in dealing in a harsher
manner with those who by repeated criminal acts have shown that they are
simply incapable of conforming to the norms of society as established by its
criminal law”). Committing a felony while on release, especially when a
term of release requires crime-free conduct, evidences repeated lawlessness
that society need not tolerate. And although the On-Release provision
applies before any finding of guilt or conviction, its required showing of
“proof evident” or “presumption great” for the “present charge[d]” offense
committed while on release convincingly suggests recidivist tendencies.
Ariz. Const. art. 2, § 22(A)(2).

¶31            The primary issue here, then, is whether the On-Release
provision is “narrowly focused on accomplishing the government’s
objective” of preventing defendants from committing new felonies while
on pretrial release from a prior felony charge. Simpson II, 241 Ariz. at 348
¶ 25. The On-Release provision has two important features that limit its
scope. By its terms, the provision does not deny bail to all criminal
defendants alleged to have committed any crime while on pretrial release,
but to a smaller subset who are charged with felonies committed while on
release from a prior felony charge. And importantly, the provision applies
only where the “proof is evident or the presumption great,” Ariz. Const.
art. 2, § 22(A)(2), a “robust” standard that requires an evidentiary hearing,
Simpson II, 241 Ariz. at 346 ¶ 16, as to the defendant’s guilt of the felony he
allegedly committed while on pretrial release, see Simpson I, 207 Ariz. at 274
¶ 40 (discussing the proof evident/presumption great standard). These
features together help ensure that the provision’s reach does not extend
beyond the government’s legitimate and compelling interest in preventing
arrestees from committing additional felonies while on release from prior
felony charges.

¶32         Morreno contends that the On-Release provision is not
narrowly focused because some felonies, including the drug offenses with
which he was charged, are neither inherently dangerous nor predictive of



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                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

future dangerousness. But he incorrectly presumes that the only state
interest that could justify pretrial detention of “on release” offenders is
future dangerousness. Salerno recognizes that a state has a compelling
interest in preventing crime (not just dangerous crime) by arrestees, and
that interest is even stronger when there is proof evident that the defendant
violated the conditions of his first release by committing the second charged
offense. The defendant’s liberty interest, conversely, is reduced because it
was already restricted by his arrest and release under conditions for the first
charge.     Under those circumstances, “the government’s interest is
sufficiently weighty,” such that the defendant’s right to be free from
physical restraint is “subordinated to the greater needs of society.” Salerno,
481 U.S. at 750–51.

¶33             Conditioning pretrial release on a defendant refraining from
committing new crimes while on pretrial release from prior criminal
charges is neither a new nor remarkable concept. Rendel v. Mummert, 106
Ariz. 233, 238–39 (1970) (“Pretrial release with restrictions placed upon a
defendant’s actions has long represented a compromise between the
liberties that a person normally enjoys and the right of the state to insure
compliance with its processes.”); see also A.R.S. § 13-3967(C) (permitting the
revocation of release “[o]n a showing of probable cause that the defendant
committed any offense during the period of release” from a prior felony
charge (emphasis added)). Moreover, the possibility of having pretrial
release revoked for a subsequent felony is entirely consistent with the
government’s interest in preventing further crimes and avoiding
recidivism, “assur[ing] compliance with its laws[,] and preserv[ing] the
integrity of the judicial process by exacting obedience with its lawful
orders.” Paquette v. Commonwealth, 795 N.E.2d 521, 530 (Mass. 2003); see also
id. at 529 (stating that, aside from “any inquiry into dangerousness, a court
has inherent power to revoke a defendant’s bail for breach of any condition
of release” (emphasis added)).

¶34             We acknowledge the “variety of state procedures for
implementing otherwise valid recidivism [laws].” Parke v. Raley, 506 U.S.
20, 27 (1992). Although the On-Release provision’s approach apparently is
not widely applied, Arizona is not alone in denying bail to defendants
charged with additional, on-release felonies. See, e.g., Tex. Const. art I,
§ 11a(a)(2) (denying bail to defendants “accused of a felony less than
capital . . . committed while on bail for a prior felony for which he has been
indicted”); Utah Const. art. I, § 8(1)(b) (denying bail to “persons charged



                                      12
                  MORRENO V. HON. BRICKNER/STATE
                        Opinion of the Court

with a felony . . . while free on bail awaiting trial on a previous felony
charge”); Iowa Code § 811.1(1) (denying bail to “defendant[s] awaiting
judgment of conviction” who commit “a second or subsequent offense” of
various felonies, including those involving marijuana possession); State v.
Burgins, 464 S.W.3d 298, 301 (Tenn. 2015) (“A defendant may forfeit her
right to bail by subsequent criminal conduct.”); cf. Parke, 506 U.S. at 26
(“[Recidivism] laws currently are in effect in all 50 States, and several have
been enacted by the Federal Government, as well.” (internal citations
omitted)). Regardless, what matters is that due process does not require an
individualized hearing to reaffirm a defendant’s recidivism risk when the
state has met its burden of showing proof evident or presumption great that
he engaged in recidivist behavior while on release. In such cases, an
individualized determination serves no narrowing function and is
therefore unnecessary.

¶35            In enacting the On-Release provision, Arizona voters left “the
keys to continued freedom” in the hands of felony defendants who enjoy
pretrial release. 2 Rendel, 106 Ariz. at 238. Yet, even before the Arizona
voters adopted the On-Release provision in 1970, Arizona statutes
conditioned release on an arrestee’s “good behavior” and cautioned that
release could be revoked based on probable cause to believe the arrestee
committed a felony while on release. See 1969 Ariz. Sess. Laws, ch. 129, § 5.
In any case, we fail to understand how a defendant could complain “that
his constitutional right to liberty has been violated when . . . the deprivation
thereof was an inevitable consequence of his alleged failure to conform his
conduct to the law[] . . . and to the explicit condition of his earlier release.”
Paquette, 795 N.E.2d at 530. Indeed, if a defendant “actively avoids all
intended associations with the criminal elements of our society,” or here
avoids knowingly possessing illegal drugs or paraphernalia, “he will be
able to avoid situations that could result in the revocation of his bail.”
Rendel, 106 Ariz. at 238.

                                     V.

¶36           We briefly address and reject Morreno’s suggestion that
denying bail to recidivist felons is absurd in light of Simpson II and Chantry

2 As of April 2, 2018, the Arizona Rules of Criminal Procedure have been
amended to incorporate the On-Release provision into a defendant’s initial
appearance. Order Amending Rules 4.2, 5.1, 5.4, 7.2, and 7.4, Rules of
Criminal Procedure, No. R-17-0015 (Ariz. 2017).


                                       13
                 MORRENO V. HON. BRICKNER/STATE
                       Opinion of the Court

v. Astrowsky, 242 Ariz. 355 (App. 2017). According to Morreno, upholding
the On-Release provision “effectively rule[s] that a person charged with
possession of marijuana is inherently more dangerous than a person
charged with having sex with a minor or molesting a child.” Again, the
On-Release provision is concerned not with future dangerousness but
rather with preventing additional felonies by defendants while on release
from a prior felony charge, and the provision is narrowly focused on that
legitimate and compelling governmental interest. Morreno ignores a
critical component of Simpson II and Chantry and again overlooks the
substantial differences between the provisions at issue in Simpson II and the
On-Release provision here. In short, while on release Morreno continued
to engage in conduct that implicated him in new crimes despite specific
warnings to refrain from any illegal conduct while on pretrial release. This
conduct placed him squarely within the government’s interest in
preventing future crime by arrestees. See Rummel, 445 U.S. at 284 (stating
that recidivism laws “segregate . . . from the rest of society” “one who
repeatedly commits criminal offenses serious enough to be punished as
felonies”). This is a far cry from Simpson II and Chantry, where the
defendants’ charges were not inherently predictive of future conduct. See
Simpson II, 241 Ariz. at 349 ¶ 27; accord Chantry, 242 Ariz. at 355 ¶ 3.

¶37            Finally, although our conclusion that the On-Release
provision meets constitutional standards is neither based nor dependent on
state statutes or rules, it comports with Arizona’s pretrial release scheme.
Under Arizona law, “[u]pon a finding of probable cause that the defendant
committed a felony [while on] release, the defendant’s release may be
revoked.” A.R.S. § 13-3968(B); see also Ariz. R. Crim. P. 7.5(d)(2)
(authorizing courts to revoke pretrial release when “there is probable cause
to believe a person committed a felony during the period of release”). 3 It is
well-established that this release condition passes substantive due process
muster, see Rendel, 106 Ariz. at 238–39; Burgins, 464 S.W.3d at 306, and is a
“necessary step to ensure compliance with our legal system and preserve
its integrity,” Paquette, 795 N.E.2d at 530. In other words, the state may
constitutionally revoke release when a defendant violates a release
condition, even though such revocation directly implicates the defendant’s


3 The 2018 amendments to the Arizona Rules of Criminal Procedure, which
took effect January 1, 2018, did not materially alter Rule 7.5(d)(2). See Order
Amending the Arizona Rules of Criminal Procedure, No. R-17-0002 (Ariz.
2017).


                                      14
                MORRENO V. HON. BRICKNER/STATE
                      Opinion of the Court

due process right to be free from unwarranted pretrial restraint. That the
state may constitutionally deny bail for a subsequent felony charge under
these circumstances, as the On-Release provision requires, is entirely
consistent with that principle.

                                  VI.

¶38            For the reasons stated above, we uphold the constitutionality
of article 2, section 22(A)(2), of the Arizona Constitution and affirm the
superior court’s order denying Morreno bail.




                                    15
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

JUSTICE GOULD, joined by JUSTICE LOPEZ, dissenting in part and
concurring in the result.

¶39          I concur in the majority’s decision denying Morreno’s facial
challenge to Arizona’s On-Release provision. See Ariz. Const. art. 2,
§ 22(A)(2). However, I respectfully dissent from the majority’s use of the
overbreadth analysis contained in Simpson II to reach this result.

                                       I.

¶40            The standard for facially challenging the constitutionality of
a statute is set forth in United States v. Salerno, 481 U.S. 739, 745 (1987):

       A facial challenge to a legislative [a]ct is, of course, the most
       difficult challenge to mount successfully, since the challenger
       must establish that no set of circumstances exists under which
       the [a]ct would be valid. The fact that the [act] might operate
       unconstitutionally under some conceivable set of
       circumstances is insufficient to render it wholly invalid, since
       we have not recognized an ‘overbreadth’ doctrine outside the
       limited context of the First Amendment.

¶41             This standard was in place before Salerno and has been
affirmed on many occasions. See City of Los Angeles v. Patel, 135 S. Ct. 2443,
2451 (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.” (citation and internal quotation marks omitted));
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)
(“[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] that
no set of circumstances exists under which the Act would be valid,’ i.e., that
the law is unconstitutional in all of its applications.” (quoting Salerno, 481
U.S. at 745)); Reno v. Flores, 507 U.S. 292, 301 (1993) (noting that to prevail
on a facial challenge, a party must show there are no set of circumstances
under which the regulation would be valid); Members of City Council of City
of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984) (stating that a
statute is invalid on its face if “it is unconstitutional in every conceivable
application”); see also City of Chicago v. Morales, 527 U.S. 41, 78–80 (1999)
(Scalia, J., dissenting) (discussing cases pre-Salerno applying the facial
challenge standard).



                                       16
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

¶42            Under Salerno, facial challenges based on the overbreadth of
a statute are limited to the First Amendment context.4 Salerno, 481 U.S. at
745; see also United States v. Stevens, 559 U.S. 460, 473 (2010) (stating that “[i]n
the First Amendment context, however, this Court recognizes a second type
of facial challenge, whereby a law may be invalidated as overbroad”
(internal quotation marks omitted)); Vincent, 466 U.S. at 801 (“[T]here must
be a realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court for
it to be facially challenged on overbreadth grounds.”). The reason for
permitting First Amendment overbreadth challenges was clearly stated by
the United States Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601,
611-12 (1973):

       It has long been recognized that the First Amendment needs
       breathing space and that statutes attempting to restrict or
       burden the exercise of First Amendment rights must be
       narrowly drawn . . . . Litigants, therefore, are permitted to
       challenge a statute not because their own rights of free
       expression are violated, but because of a judicial prediction or
       assumption that the statute’s very existence may cause others
       not before the court to refrain from constitutionally protected
       speech or expression.

¶43            Outside the First Amendment context, there are a number of
reasons for strictly limiting facial challenges. One reason is that
“constitutional rights are personal and may not be asserted vicariously.”
Broadrick, 413 U.S. at 610. However, when a person facially attacks a statute,
he seeks to strike down a statute that is constitutionally applied to him but
“may conceivably be applied unconstitutionally to others.” Id. In addition,
“facial challenges threaten to short circuit the democratic process by
preventing laws embodying the will of the people from being implemented
in a manner consistent with the Constitution.” Wash. State Grange, 552 U.S.
at 451.



4 Facial overbreadth challenges have also been recognized in the context of
abortion statutes. Sabri v. United States, 541 U.S. 600, 609–10 (2004) (stating
that facial challenges based on overbreadth are recognized in “relatively
few settings,” including free speech and abortion).


                                        17
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

¶44           Limiting facial challenges is also based on the principle that
courts must be careful in striking down statutes with respect to parties and
factual applications that are not before it. Id. at 449–50; Broadrick, 413 U.S.
at 610–11. Facial challenges alleging overbreadth not only “invite
judgments on fact-poor records,” but they “allow a determination that the
law would be unconstitutionally applied to different parties and different
circumstances” that are not before the court. Sabri, 541 U.S. at 609. At
bottom, courts must exercise judicial restraint under such circumstances,
recognizing that “under our constitutional system courts are not roving
commissions assigned to pass judgment on the validity of the Nation’s
laws.” Broadrick, 413 U.S. at 610–11.

                                      II.

¶45           While the majority, in reliance on Simpson II, purports to
apply Salerno’s standard, in practice it does not. See supra ¶ 14; Simpson II,
241 Ariz. at 344–45 ¶ 7 (stating a facial challenge requires “the party
challenging the law [to] establish that it ‘is unconstitutional in all of its
applications’”) (quoting Patel, 135 S. Ct. at 2451). Rather, it abandons the
facial standard set forth in Salerno, substituting the overbreadth standard
used in Simpson II and by the Ninth Circuit in Lopez-Valenzuela v. Arpaio, 770
F.3d 772 (9th Cir. 2014).

                                      A.

¶46            In Simpson II, defendants asserted that article 2, section
22(A)(1), of the Arizona Constitution (and its corresponding provision in
A.R.S. § 13-3961(A)(3)) was facially invalid. Simpson II, 241 Ariz. at 344 ¶ 5.
The constitutional provision at issue stated that a defendant was ineligible
for bail or pretrial release if (1) he was charged with committing the crime
of sexual conduct with a minor under the age of fifteen, and, (2) after an
evidentiary hearing, the court determined the proof was evident or the
presumption great that the defendant committed this crime. Id. at ¶ 2.

¶47           Applying the “heightened scrutiny” test used by the Ninth
Circuit in Lopez-Valenzuela, Simpson II sustained the defendants’ facial
challenge on the grounds the subject provision violated substantive due
process. Id. at 346, 348, 349 ¶¶ 17, 23, 30; see also Lopez-Valenzuela, 770 F.3d
at 780 (discussing the application of a “heightened scrutiny” standard to a
pretrial detention statute). Simpson II recognized that the purpose of the


                                      18
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

bond provision, protecting children from potentially dangerous sex
offenders, was both legitimate and compelling. Id. at 348 ¶ 24. However,
the Court determined that the provision was not “narrowly focused” to
achieve this purpose. Id. at 348–49 ¶¶ 25–28. In reaching this conclusion,
Simpson II held that the offense-based bond provision did not allow a court
to make an “individualized determination” as to a defendant’s
dangerousness. Id. ¶¶ 25–26. The Court held that absent such an
individualized hearing, any offense-based approach must be premised on
crimes that “inherently predict future dangerousness,” id. at 349 ¶ 30, and
therefore serve as a “convincing proxy for unmanageable flight risk or
dangerousness,” id. at 348–49 ¶¶ 26–27 (quoting Lopez-Valenzuela, 770 F.3d
at 786).

¶48             Ultimately, Simpson II concluded that the bond provision, on
its face, violated due process because sexual conduct with a minor is not a
“convincing proxy for . . . dangerousness.” Id. at 348-49 ¶¶ 26-27. What is
remarkable about this conclusion is that in reaching it, the Court abandoned
Salerno and employed an overbreadth analysis. On the one hand, the Court
recognized that there were circumstances where the provision would be
valid. The Court stated that “[s]exual conduct with a minor is always a
serious crime,” and “[i]n many but not all instances, its commission may
indicate a threat of future dangerousness.” Id. at 349 ¶ 31 (emphasis added).
On the other hand, the Court speculated that there were circumstances
where the provision might not be valid. Specifically, the Court stated that
the crime might involve “consensual sex” between two teenagers and,
under such a scenario, the fact a “defendant committed the crime would
suggest little or nothing about the defendant’s danger to anyone.” Id. ¶ 27.
Thus, the Court concluded, even where the proof is evident or the
presumption great that a defendant has committed sexual conduct with a
minor, detention on this basis “sweeps in situations” where a defendant
might not pose a danger to the community. Id.

¶49           Thus, setting aside the well-established standard for facial
challenges, Simpson II struck down a statute that had clear constitutional
applications. The bond provision in Simpson II limited detention to those
cases where the state proved, by the “robust” standard of proof
evident/presumption great, id. at 346 ¶ 16, that a defendant penetrated a
child’s anus or vagina with his penis or some object; had oral contact with
a child’s penis, vulva, or anus; or engaged in masturbation with a child’s



                                     19
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

penis or vagina. See A.R.S. §§ 13-1405(A), –1401(A)(1), (4). In passing this
constitutional provision, the people of Arizona made a judgment that,
under these limited circumstances, a legitimate and compelling purpose —
protecting children from severe sexual abuse — was served by temporarily
detaining a defendant pending trial. At a minimum, this constitutional
provision survives a facial challenge. Indeed, it is reasonable to conclude
that in those cases where the proof is evident/presumption great that a
thirty, forty, or fifty-year-old defendant sodomizes a five-year-old or has
sexual intercourse with an eight-year-old, he may, if released before trial,
pose a danger to his victim or other children in the community. See State v.
Furgal, 13 A.3d 272, 279 (N.H. 2010) (stating that New Hampshire’s no bond
procedure is limited to the “most serious offenses”; the procedure reflects
the fact “[t]he legislature has made a reasoned determination that when ‘the
proof is evident or the presumption great,’ the risk to the community
becomes significantly compelling, thus justifying the denial of bail.”).

¶50            Despite the “many instances” where the subject bond
provision would protect the community by detaining dangerous sex
offenders, Simpson II focused on one hypothetical situation — “consensual
sex” between teenagers — in rendering the statute invalid on its face. Of
course, this “consensual sex” hypothetical is based on a legal impossibility;
a child under the age of fifteen cannot consent to such acts. See State v.
Fischer, 219 Ariz. 408, 414–15 ¶ 20 (App. 2008) (stating that consent is not an
element of the offense of sexual conduct with a minor, and that a defendant
may commit the crime “regardless of a minor’s purported consent”).
Moreover, the defendants in Simpson II certainly did not fall into the Court’s
hypothetical scenario; they were middle-aged men who repeatedly sexually
abused young children. But, more fundamentally, the Court departed from
well-established law and struck down the provision as overbroad because
it could conceivably “sweep in” defendants who did not pose a danger to
the community.

¶51           At bottom, Simpson II adopted the flawed analysis used in
Lopez-Valenzuela. There, the court struck down a state constitutional
provision (“Proposition 100”) denying bail for undocumented immigrants
charged with any of a broad range of felonies. Lopez-Valenzuela, 770 F.3d at
791. Lopez-Valenzuela took some extraordinary liberties in construing
Salerno, including some interpretations that were expressly rejected by
Simpson II. For example, Lopez-Valenzuela construed Salerno as applying



                                      20
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

strict scrutiny to detention statutes. Id., at 791. Simpson II recognized, of
course, that “Salerno did not require this standard.” Simpson II, 241 Ariz. at
348 ¶ 23.

¶52           Simpson II also disagreed with Lopez-Valenzuela’s conclusion
that Salerno required “all statutory bail schemes” to include the specific
procedural safeguards contained in the Bail Reform Act to satisfy due
process. Id., at 347 ¶ 21. Rather, Simpson II recognized that in Salerno the
United States Supreme Court “found that the Bail Reform Act’s safeguards
‘are more exacting’ and ‘far exceed’ those found sufficient in other
contexts.” Id., at 347 ¶ 21 (citing Salerno, 481 U.S.at 752). In support of this
conclusion we also cited the following holding from Furgal, 13 A.3d at
278-79: “[w]e do not read Salerno to hold that all statutory bail schemes must
include an individualized inquiry into a defendant’s dangerousness in
order to pass constitutional muster.” Simpson II, Id.

¶53            Unfortunately, Simpson II also adopted several holdings from
Lopez-Valenzuela that find no basis in Salerno. One of the most striking
examples is Simpson II’s reliance on the notion that any offense-based,
categorical bond provision must be based on a crime that is a “convincing
proxy for unmanageable flight risk or dangerousness.” Id., at 348-49
¶¶ 25-26. This standard was derived from Lopez–Valenzuela. 770 F.3d at
786. Of course, the idea of a crime constituting a “convincing proxy” for
dangerousness is not found anywhere in Salerno. Rather, in creating this
novel test, Lopez–Valenzuela relied on United States v. Kennedy, 618 F.2d 557,
558–59 (9th Cir. 1980), which noted that “capital offenses may be made
categorically nonbailable because ‘most defendants facing a possible death
penalty would likely flee regardless of what bail was set.’” (emphasis
added). However, with no explanation, Lopez–Valenzuela modified this
statement from Kennedy, concluding that a crime was not a “convincing
proxy” for an “unmanageable flight risk” so long as “many” defendants did
not pose a flight risk. Id., at 785. (emphasis added). Simpson II then decided
to raise the bar even higher, concluding that a crime is not a convincing
proxy for dangerousness unless “all” defendants charged such a crime pose
a danger to the community. Id., at 348-49 ¶¶ 26-27, 30-31.

¶54            Additionally, Simpson II set aside Salerno’s standard for facial
challenges and adopted Lopez-Valenzuela’s overbreadth standard. In
crafting its own novel standard for reviewing a facial challenge outside the
First Amendment, Lopez-Valenzuela held that:


                                      21
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

       [E]ven if some undocumented immigrants pose an
       unmanageable flight risk or undocumented immigrants on
       average pose a greater flight risk than other arrestees, [the
       provision] plainly is not carefully limited because it employs an
       overbroad, irrebuttable presumption rather than an
       individualized hearing to determine whether a particular
       arrestee poses an unmanageable flight risk.

Id. at 784 (second and third emphases added). Applying this standard,
Lopez-Valenzuela concluded that Prop 100 violated due process because it
“employs a profoundly overbroad irrebuttable presumption, rather than an
individualized evaluation, to determine whether an arrestee is an
unmanageable flight risk.” Id. at 791 (emphasis added).

¶55            Apart from Lopez-Valenzuela, the majority attempts, without
success, to find cases that support Simpson II. For example, its citation to
Patel is misplaced. In Patel, a group of motel operators brought a facial
challenge to a municipal code provision requiring them to provide certain
guest records to the police. Id. 135 S. Ct. at 2447-48. In response to this facial
challenge, the City argued that there were situations where searches
authorized by the code provision were constitutionally valid. Specifically,
the City argued that a search of guest records would be valid if based on
consent, exigent circumstances, or a search warrant. Id. at 2450-51.

¶56            Applying the Salerno standard, Patel stated that a party
seeking facial relief must show “that no set of circumstances exists under
which the [statute] would be valid.” Id. at 2450. (quoting Salerno, 481 U.S.
at 745). Patel concluded the motel operators met this standard, because the
only valid applications urged by the City were irrelevant to its constitutional
analysis. While the City’s proposed applications (a search warrant, consent
or exigent circumstances) provided constitutional grounds for obtaining a
guest’s hotel records, such searches were not regulated or authorized by the
code provision itself. Id. at 2450-51. Thus, Patel emphasized that “the proper
focus of the constitutional inquiry” must b e those “applications of the
statute in which it actually authorizes or prohibits conduct,” and “not
those for which it is irrelevant.” Id. at 2451 (internal citations omitted).

¶57           Patel provides no support for Simpson II. Patel applied
Salerno’s standard for facial challenges; it did not apply Simpson II’s
overbreadth analysis. Additionally, unlike Patel, Simpson II addressed


                                       22
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

relevant applications of the subject bond provision. Stated another way,
Simpson II did not address circumstances where a defendant was being held
without bond on grounds that were neither regulated nor authorized by
article 2, section 22(A)(1), of the Arizona Constitution. Rather, the Court
addressed circumstances that fell squarely within the terms of the subject
constitutional provision: the denial of bail to defendants charged with
sexual conduct with a minor under the age of fifteen when the proof was
evident/presumption great that they committed the crime.

¶58            The majority also claims that Simpson II is consistent with
other cases where the United States Supreme Court has invalidated laws
“that categorically denied important, protected interests, regardless of the
particular circumstances.” See supra ¶ 18. I agree that, as a general matter,
the United States Supreme Court has struck down laws categorically
denying important rights. However, I am not sure what relevance this
broad statement has to this case. This general proposition certainly does
not provide a justification for abandoning Salerno or abrogating the United
States Supreme Court’s well-established rule that facial challenges based on
overbreadth are restricted to the First Amendment. See supra ¶ 43.

¶59           Moreover, what is relevant here is that the United States
Supreme Court has upheld categorical pretrial detention statutes as
constitutional. Salerno itself recognized that bond may be categorically
denied in a capital case. Salerno, 481 U.S. at 753; see also Simpson II, 241 Ariz.
at 345, 349 ¶¶ 10, 26 (recognizing that pretrial detention is permitted for
capital crimes and sexual assault); Demore v. Kim, 538 U.S. 510, 517–18, 521,
523, 531 (2003) (holding that a categorical approach detaining
undocumented immigrants during deportation proceedings who had been
convicted of an “aggravated felony” did not violate due process); cf.
Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018) (recognizing that under 8
U.S.C. § 1226(c), undocumented immigrants are ineligible for release based
on the commission of certain enumerated offenses).

¶60             While liberty, in its broadest sense, is fundamental, the nature
of the right is constrained by the circumstances of each case. Persons “may
face substantial liberty restrictions as a result of the operation of our
criminal justice system,” including arrest and detention of an individual
suspected of committing a crime “until a neutral magistrate determines
whether probable cause exists,” incarcerating an “arrestee” “until trial if he
presents a risk of flight,” and detaining a defendant who poses “a danger


                                       23
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

to witnesses.” Salerno, at 749. Indeed, the fact that every defendant charged
with a felony is subject to some pretrial release restrictions demonstrates
that once a person is charged with a crime, his liberty interest is reduced.
See A.R.S. § 13-3967(E)(2) (stating that in cases where a defendant has
committed a sex offense, he is prohibited “from having any contact with the
victim”); Ariz. R. Crim. P. 7.3(a)(1) (stating that “every order of release must
contain” a restriction the defendant not leave the state “without the court’s
permission”). The majority recognizes this principle when, in reference to
the On-Release provision, it states “[t]he defendant’s liberty interest . . . is
reduced, because it was already restricted by his arrest and release under
conditions for the first charge.” Supra ¶ 32 (emphasis added).

¶61            Thus, before a court can consider a due process challenge, it
must first identify the nature of the liberty interest at stake. See Washington
v. Glucksberg, 521 U.S. 702, 722 (1997) (stating a court must carefully
formulate the liberty interest at stake in substantive due process cases); cf.
Demore, 538 U.S. at 521, 523 (recognizing that while “the Fifth Amendment
entitles aliens to due process of law in deportation proceedings,” “[i]n the
exercise of its broad power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied to citizens”
(internal quotation marks omitted)); Schall v. Martin, 467 U.S. 253, 264–65
(1984) (explaining that a juvenile’s liberty interest in “freedom from
institutional restraints . . . is undoubtedly substantial . . . . But that interest
must be qualified by the recognition that juveniles, unlike adults, are
always in some form of custody.”) (citation omitted); cf. Morrissey v. Brewer,
408 U.S. 471, 481–82 (1972) (“[C]onsideration of what procedures due
process may require under any given set of circumstances must begin with
a determination of the precise nature of the government function involved
as well as of the private interest that has been affected by governmental
action.” (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886,
895 (1961)).

¶62           Salerno illustrates this point. There, the Court did not analyze
a defendant’s liberty interest in the context of some generalized liberty
interest. Rather, it focused on a defendant’s liberty interest in the context
of a temporary, pretrial detention where he is charged with a serious crime
and the “the Government [has proved] by clear and convincing evidence
that an arrestee presents an identified and articulable threat to an
individual or the community.” Salerno, 481 U.S. at 750–51. The Court



                                        24
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

concluded that “[u]nder these circumstances, we cannot categorically state
that pretrial detention ‘offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.’”
Id. at 751 (emphasis added) (quoting Snyder v. Massachusetts, 291 U.S. 97,
105 (1934). In short, the Court concluded that temporary pretrial detention
under the Bail Reform Act did not implicate a fundamental right. Cf.
Glucksberg, 521 U.S. at 720–21 (stating due process “protects those
fundamental rights and liberties which are, objectively, ‘deeply rooted in
this Nation’s history and tradition’”) (quoting Moore v. City of East Cleveland,
431 U.S. 494, 503 (1977)).

¶63           The majority’s reliance on Stanley v. Illinois, 405 U.S. 645 (1972)
is misplaced. Unlike Salerno, Stanley did not involve a statute where a
defendant charged with committing a serious felony is temporarily
detained pending trial. Rather, in Stanley, the statute at issue permanently
deprived all unwed fathers of custody of their children. 405 U.S. at 649–51.
The statute presumed, without the benefit of a hearing, evidentiary
showing, or even an allegation of parental unfitness, that all unwed fathers
were unfit parents. Id. at 650. Thus, the issue was not whether the existing
statute was deficient in protecting the rights of some fathers; rather, Stanley
addressed a statute permanently depriving an entire class of citizens of
their parental rights without any procedural protections. See also Foucha v.
Louisiana, 504 U.S. 71, 81-83 (1992) (distinguishing the reduced liberty
interest identified in Salerno from the total deprivation of liberty occurring
under a Louisiana statute where persons, who were not charged with any
crime, were detained indefinitely in a psychiatric hospital, despite the fact
they were not suffering from a mental illness and could only be released by
proving to the court they were not dangerous).

                                       B.

¶64          In fidelity to Simpson II, the majority once again abandons
Salerno and applies the novel Lopez-Valenzuela overbreadth standard to
analyze Morreno’s facial challenge. See supra ¶¶ 14–16, 18. While the
majority strives to distinguish the On-Release provision from the
offense-based provision in Simpson II, I do not think it can for one simple
reason: no categorical bond provision can survive scrutiny under the
Simpson II overbreadth standard. Indeed, even Simpson II’s holding that
capital murder and sexual assault provide a convincing proxy for
dangerousness collapse under the weight of the overbreadth standard,


                                       25
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

because it is always possible to think of factual scenarios where such offenses
may not “inherently” predict future dangerousness or provide a reliable
“proxy for dangerousness.” See Simpson II, 241 Ariz. at 348–49 ¶¶ 26–27,
30.

¶65           Applying Simpson II to the On-Release provision
demonstrates this point. The majority first claims that the On-Release
provision has a different purpose (preventing recidivism) than Simpson II
(protecting the victim and the community). It then concludes that the
On-Release provision, unlike the provision in Simpson II, is narrowly
focused on accomplishing this purpose because it only applies to (1)
defendants “who are charged with felonies committed while on release
from a prior felony charge, and (2) the state must show the “proof is evident
or the presumption great” the defendant committed the new felony. Supra
¶ 31.

¶66            But is a defendant who commits a new felony while on
pretrial release for another felony always a risk to recidivate? Stated another
way, are there factual scenarios where a defendant might not conceivably
pose a risk to re-offend, and yet is “swept in” by the “overbroad”
On-Release provision? Undoubtedly, we can speculate about such
scenarios. As one example, consider a defendant who is arrested and
charged for possessing marijuana. After he is arrested and booked into jail,
the judge releases him on his own recognizance. The defendant is then
picked up by his girlfriend, who is driving his car. Unfortunately, the
defendant left his marijuana pipe in the car, and fifty feet from the jail a
police officer pulls him over for a broken tail light. Defendant consents to
a search of the car, the pipe is discovered, and defendant is charged with a
new felony: possession of drug paraphernalia. Does the defendant’s arrest
for this new felony indicate he is a risk to commit new felony crimes while
on pretrial release?

¶67           Of course, like the “consensual sex” scenario in Simpson II,
this hypothetical stands the test for a facial challenge on its head. Rather
than the defendant establishing there are no circumstances where the
On-Release provision would be valid, an overbreadth analysis invites a
court to speculate about circumstances where the law might not operate
constitutionally.




                                      26
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

¶68            To be clear, I think the On-Release provision is
constitutionally valid because Morreno has failed to make a successful
facial challenge under Salerno. The On-Release provision is narrowly
focused on its purpose of preventing crime because, in many circumstances,
when a defendant commits a new felony while on release it “strongly
suggests recidivist tendencies.” Supra ¶ 30. Thus, Morreno cannot show
that there is “no set of circumstances exists under which” the On-Release
provision would be valid. Salerno, 481 U.S. at 745. The point, however, is
that the On-Release provision is valid using the Salerno standard; it can
never be valid using the Simpson II standard.

¶69           Applying the Salerno standard does not, as Morreno contends,
leave him without a remedy. He can assert, just as he did here on the
grounds of facial invalidity, that the On-Release provision is
unconstitutional as applied to him. Cf. Schall, 467 U.S. at 273 (“It may be, of
course, that in some circumstances detention of a juvenile would not pass
constitutional muster. But the validity of those detentions must be
determined on a case-by-case basis.”); Hernandez v. Lynch, 216 Ariz. 469, 481
¶ 47 (App. 2007) (Kessler, J., concurring) (stating that defendant challenging
his detention under former Proposition 100 was not precluded from making
an as-applied challenge). Under such a challenge, this Court need not
speculate about other cases or situations where the On-Release provision
may or may not violate due process. Rather, we need only consider
whether a particular defendant’s constitutional rights were actually violated.

¶70           Ultimately, I am concerned that Simpson II’s overbreadth
analysis will open the floodgates to facial challenges. Simpson II may well
require courts in this state to consider an increasing number of facial
challenges asserted by parties who have not and cannot show that a statute
is unconstitutional as to them. Rather, such litigants may seek to invalidate
a statute because it may conceivably violate the constitutional rights of
someone else who is not before the court — whether that person actually
exists or is simply a hypothetical construct designed to invalidate the
statute. Of course, this will require courts in many instances to speculate
about the validity of an entire statutory scheme or a constitutional provision
without the benefit of a developed factual record or concrete facts.

¶71          To avoid this unworkable scenario, the United States
Supreme Court has adopted a very demanding standard for facial
challenges. While it is not impossible, making a successful facial challenge


                                      27
                MORRENO V. HON. BRICKNER/STATE
      JUSTICE GOULD, joined by JUSTICE LOPEZ, Dissenting in Part and
                         Concurring in the Result

is extremely difficult; indeed, it is “the most difficult challenge to mount
successfully.” Salerno, 481 U.S. at 745 (emphasis added); see also Patel, 135
S. Ct. at 2447, 2451 (concluding that because there were no relevant
circumstances under which the subject municipal code was valid, it was
facially invalid). Thus, because I think it is wise to apply the Salerno
standard to facial challenges, and, because I do not believe Simpson II
follows that standard, I dissent.




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