Heath v. Kiger

SUPREME COURT OF ARIZONA
En Banc

SARAH M. HEATH, ) Arizona Supreme Court
) No. CV-07-0222-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 06-0197
THE HONORABLE WILLIAM T. KIGER, )
JUDGE OF THE SUPERIOR COURT OF ) Yavapai County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Yavapai, ) No. CR82006-0397
)
Respondent Judge, )
)
STATE OF ARIZONA, ) O P I N I O N
)
Real Party in Interest. )
)
__________________________________)

Order of the Superior Court in Yavapai County
The Honorable William T. Kiger, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
215 Ariz. 119, 158 P.3d 248 (2007)

VACATED
________________________________________________________________

DAMON A. ROSSI Prescott
By Damon A. Rossi

And

ABIGAIL JENSEN, P.C. Prescott
By Abigail Jensen
Attorneys for Sarah M. Heath

SHEILA SULLIVAN POLK, YAVAPAI COUNTY ATTORNEY Prescott
By Tina R. Ainley, Deputy County Attorney

Dennis M. McGrane, Deputy County Attorney
Attorneys for State of Arizona

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
Attorney for Amicus Curiae Maricopa County Attorney's Office
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Under Article 2, Section 22, of the Arizona Constitution,

persons charged with a crime can be released on bail except in

limited circumstances. One such circumstance occurs when a

person charged with a felony offense “is already admitted to

bail on a separate felony charge and . . . the proof is evident

or the presumption great as to the present charge.” Ariz.

Const. art. 2, § 22.A.2 (emphasis added). We hold that a

defendant released on her own recognizance has been “admitted to

bail” for purposes of Article 2, Section 22.A.2.

I.

¶2 On April 5, 2005, Sarah M. Heath was charged with three

felony drug counts. Heath entered into a plea agreement with

the State in which she pled guilty to all the charges. Under

the terms of the plea agreement, the superior court released

Heath on her own recognizance. The agreement provided that

Heath would participate in the Treatment Assessment Screening

Center (TASC) program. Upon successful completion of the TASC

program, the court would dismiss two of the felony charges and

designate the third, possession of drug paraphernalia, as a

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misdemeanor. If Heath failed to complete the program, however,

she would be sentenced on the felony charges to which she pled

guilty.

¶3 Heath completed the TASC program, but before sentencing she

was arrested and charged with three new felony drug counts.

Citing Article 2, Section 22.A.2, the State moved to hold Heath

without bail on the new felony charges. Heath argued that she

was not “admitted to bail” at the time she allegedly committed

the new felony offenses. After an evidentiary hearing, the

superior court found that Heath “was on felony release at the

time” of her arrest and that there was “proof evident or

presumption great” that she had committed one of the new felony

offenses. Thus, the court ordered Heath “held without bail

until further order of the court.”

¶4 Heath filed a petition for special action with the court of

appeals, which accepted jurisdiction and granted relief. Heath

v. Kiger, 215 Ariz. 119, 120 ¶ 1, 158 P.3d 248, 249 (App. 2007).

The court determined that Article 2, Section 22.A.2, does not

apply to defendants released on their own recognizance. Id. at

123 ¶ 24, 158 P.3d at 252.

¶5 We granted review to resolve this issue of statewide

importance. See ARCAP 23(c)(3). We exercise jurisdiction

pursuant to Article 6, Section 5.3, of the Arizona Constitution.

II.

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¶6 Whether a defendant who has been released on her own

recognizance is “admitted to bail” for purposes of Article 2,

Section 22.A.2, presents a question of constitutional

construction subject to de novo review. See Massey v. Bayless,

187 Ariz. 72, 73, 927 P.2d 338, 339 (1996). When the language

of a provision is clear and unambiguous, we apply it without

resorting to other means of constitutional construction. Jett

v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994).

Ambiguity occurs when uncertainty exists about the meaning or

interpretation of a provision’s terms. See Hayes v. Cont’l Ins.

Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

A.

¶7 This case turns on the meaning of the phrase “admitted to

bail.”1 The Arizona Constitution does not define this phrase.

Under these circumstances, we ascribe to the phrase its natural,

obvious, and ordinary meaning as understood and used by the

people. See McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290,

645 P.2d 801, 805 (1982) (“When the words of a constitutional

provision are not defined within it, the meaning to be ascribed

to the words is that which is generally understood and used by

1
Article 2, Section 22.A.2, of the Arizona Constitution,
states: “All persons charged with crime shall be bailable by
sufficient sureties, except . . . [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.” (Emphasis added.)

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the people.”).

¶8 In some instances, the meaning of a term is ordinary and

obvious. For example, in Circle K Stores, Inc. v. Apache

County, the term “taxpayer” was found to have a common meaning

ascribed by the populace. 199 Ariz. 402, 406 ¶ 11, 18 P.3d 713,

717 (App. 2001) (finding that a Webster’s dictionary definition,

which defined “taxpayer” as “[o]ne that pays or is liable for a

tax,” reflected the ordinary meaning of the term as understood

by the populace). In contrast, the phrase “admitted to bail”

does not have an obvious and common meaning known by the people.

In fact, even legal dictionaries fail to provide a consistent

meaning for the term.2 Therefore, we turn to other aids to

2
For example, Black’s Law Dictionary assigns “bail” multiple
definitions, one of which is consistent with a finding that one
released on his or her own recognizance has been “admitted to
bail,” and another of which is not:

1. A security such as cash or a bond . . . .
2. The process by which a person is released from
custody either on the undertaking of a surety or on
his or her own recognizance.

Black’s Law Dictionary 150 (8th ed. 2004). Also, the fifth
edition of Black’s Law Dictionary defined “personal
recognizance” in part as “[a] species of bail in which the
defendant acknowledges personally without sureties his
obligation to appear in court at the next hearing or trial date
of his case.” Black’s Law Dictionary 1030 (5th ed. 1979)
(emphasis added). The current version of Black’s Law
Dictionary, however, defines the term “personal recognizance” as
the “release of a defendant in a criminal case in which the
court takes the defendant’s word that he or she will appear for
a scheduled matter or when told to appear.” Black’s Law
Dictionary 1299 (8th ed. 2004).

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assist us in interpreting the phrase.

B.

¶9 When discerning the meaning of a constitutional provision,

“[o]ur primary purpose is to effectuate the intent of those who

framed the provision and, in the case of an amendment, the

intent of the electorate that adopted it.” Jett, 180 Ariz. at

119, 882 P.2d at 430. If a constitutional provision is not

clear on its face, we can use extrinsic evidence to show the

intent of the framers and the electorate that adopted it. See

McElhaney Cattle Co., 132 Ariz. at 289-90, 645 P.2d at 804-05.

Because each voter’s intent may differ, however, determining the

actual intent of the electorate in adopting the amendment is an

elusive task. See Randolph v. Groscost, 195 Ariz. 423, 427 ¶

15, 989 P.2d 751, 755 (1999). When we find ambiguity in a

provision, “we may consider the history behind the provision,

the purpose sought to be accomplished, and the evil sought to be

remedied.” Jett, 180 Ariz. at 119, 882 P.2d at 430.

¶10 As originally enacted, Article 2, Section 22 prescribed

that all persons charged with crimes, other than capital

offenses, are bailable by sufficient sureties. Ariz. Const.

art. 2, § 22 (1910). The constitutional amendment at issue

here, § 22.A.2, which limits release for certain felony

offenses, was proposed by the legislature in April 1969 and

approved by a majority of electors in the November 1970 general

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election. Ariz. Const. art. 2, § 22.A.2, cmt. (Supp. 1983).

¶11 Heath maintains that Arizona statutes and court rules

related to pre-trial release clearly differentiate between

release on bail and release on one’s own recognizance and

therefore the phrase “admitted to bail” could not have been

intended to encompass release on one’s own recognizance.

Heath’s argument does not lack basis. For example, Arizona

Revised Statutes (A.R.S.) section 13-1577.B (1969), which was

enacted by the same legislature that referred § 22.A.2 to the

voters,3 arguably differentiates between those released on bail

and those released on their own recognizance: “Any person

charged with a public offense which is bailable as a matter of

right shall . . . be ordered released pending trial on his own

recognizance or upon the execution of bail in an amount

specified by the judicial officer.” (Emphasis added.) See also

A.R.S. § 13-604.R (Supp. 2007) (providing enhanced sentences for

those convicted of a felony committed while the defendant “is

released on bail or on the defendant’s own recognizance”

(emphasis added)); Ariz. R. Crim. P. 7.2(c)(1) (Supp. 2007)

(prohibiting release of a defendant “on bail or on the person’s

own recognizance” under certain circumstances (emphasis added)).

3
See Release on Bailable Offenses Prior to Trial, 1969 Ariz.
Sess. Laws, ch. 129, § 5 (1st Reg. Sess.); H. Con. Res. 2, 1969
Ariz. Sess. Laws 523 (1st Reg. Sess.).

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¶12 Although Heath’s argument finds some support in a parsing

of statutes and court rules, “[c]ourts should avoid

hypertechnical constructions that frustrate legislative intent.”

State v. Estrada, 201 Ariz. 247, 251 ¶ 19, 34 P.3d 356, 360

(2001) (quoting Calik v. Kongable, 195 Ariz. 496, 501 ¶ 20, 990

P.2d 1055, 1060 (1999)); see also United States v. Superior

Court, 144 Ariz. 265, 275-76, 697 P.2d 658, 668-69 (1985)

(noting that constitutional provisions should be interpreted

“with an eye to syntax, history, initial principle, and

extension of fundamental purpose”). Moreover, at the time

Arizona adopted Article 2, Section 22.A.2, this Court apparently

interpreted the term “bail” to include release on one’s own

recognizance. Arizona Rule of Criminal Procedure 236 (1956) (in

effect at the time of amendment), provided that a defendant “if

bailable shall be released on bail either on his own

recognizance or on the undertaking of sureties.” (Emphasis

added.) Thus, even a technical definition of the term “bail”

could reasonably be said to include release on one’s own

recognizance.

¶13 We may also consider legislative history to determine the

intent of those who framed the provision. Here, the available

history is limited. The records of the committee minutes of the

hearing on the provision do not document the reasons for

adopting Article 2, Section 22.A.2. See H. Judiciary Comm.,

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Meeting Minutes, 29th Leg., 1st Reg. Sess. (Feb. 18, 1969); S.

Judiciary Comm., Meeting Minutes, 29th Leg., 1st Reg. Sess.

(Mar. 26, 1969). To determine the intent of the electorate,

courts may also look to the publicity pamphlet distributed at

the time of the election. See McElhaney Cattle Co., 132 Ariz.

at 290-91, 645 P.2d at 805-06 (utilizing published argument to

determine intent behind a constitutional provision). The

publicity pamphlet published by the Secretary of State for the

1970 election at which the constitutional provision at issue was

adopted, however, also provides limited assistance at best. The

pamphlet contained only one published argument. The argument,

offered by a citizens’ committee in support of the amendment,

indicated that the purpose of the amendment was to prevent

criminals from continuing to commit new felony offenses while

awaiting trial on an earlier felony charge.4

4
The full argument stated:

Oneof the major reasons for the rapidly
increasing crime rate in Arizona is the problem of
repeat offenders, who continue their lives of crime
while out on bail, awaiting trial. As many as twelve
major offenses have been committed by individuals who
have been released, while their trials are delayed
many months. Society should be protected from these
professional criminals. Referendum No. 100 should
provide protection to the law abiding citizens, when
bail and release are denied if there is reasonable
evidence to believe that an individual has committed a
second felony offense, while out on bail awaiting
trial for a first offense. Trials should be
expedited, if the victim [sic] is not free, thereby
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¶14 Just two years after the amendment was adopted, the court

of appeals identified the purpose of the amendment as being to

avoid the “revolving door” scenario in which an offender

continues to commit crimes while released on bail:

[In adopting Article 2, Section 22.A.2], it was
recognized that . . . due to the length of time it
takes to get to trial and due to the fact that the
offender is able to post bail, persons committing
crimes are able to commit several offenses while out
on bail, knowing that on each subsequent offense they
will be able to raise bail . . . . [I]t is entirely
reasonable for the people of Arizona to preclude such
occurrences from happening in this state.

State v. Garrett, 16 Ariz. App. 427, 429, 493 P.2d 1232, 1234

(1972); see also State ex rel. Romley v. Superior Court, 185

Ariz. 160, 164, 913 P.2d 500, 504 (App. 1996) (“[B]y the

adoption of Article 2, § 22(2), the people of the State of

Arizona have spoken to keep repeat offenders from continuing to

commit crimes while out on bail.”) (internal quotation and

alteration omitted). We conclude that the most reasonable

explanation of the purpose of the amendment is that defined by

speeding up the court processes. We strongly support
passage of this referendum as a means of self-
preservation and self-protection from criminals whose
profession make society their victim.

State of Arizona Referendum and Initiative Publicity Pamphlet,
Proposed Amendments to the Constitution (1970). The president of
the citizens’ committee who submitted the published argument
testified before the Senate Judiciary Committee in support of
the amendment. S. Judiciary Comm., Meeting Minutes, 29th Leg.,
1st Reg. Sess., at 2 (Mar. 26, 1969).

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the court of appeals. If the purpose is to prevent those

charged with felonies but released pending trial from committing

additional crimes, the amendment should apply to all those

released. If, then, we were to interpret “admitted to bail” as

excluding release on one’s own recognizance, the purpose of the

amendment would be frustrated.

¶15 Heath argues that logic requires that we distinguish

between defendants released on bail and defendants released on

their own recognizance. Specifically, she contends that

defendants released on their own recognizance must have been

deemed more trustworthy in terms of their promise to reappear in

court than those required to post bail. Thus, she concludes,

the more trustworthy defendants should remain eligible for

release on the new charges while defendants who were required to

post bail should be denied release of any kind. We are not

persuaded by this argument, which would reward those defendants

who broke the trust our courts bestowed upon them.

¶16 Further, such an interpretation would lead to illogical

results: A defendant released on a relatively small bond would

not be eligible for release if arrested on a new felony charge,

whereas a person released on his or her own recognizance would

be eligible for release. It appears inconsistent with the

provision’s purpose to allow a defendant released on his or her

own recognizance to remain at large after committing a new

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felony offense, but to revoke release of a defendant who paid a

minimal bond under the same circumstances. See Estrada, 201

Ariz. at 251 ¶¶ 16-18, 34 P.3d at 360 (noting that a provision

should be interpreted to avoid absurd results). We therefore

conclude that the phrase “admitted to bail” includes those

defendants released on their own recognizance.

III.

¶17 For the foregoing reasons, we vacate the court of appeals’

decision and affirm the order of the superior court holding

Heath without bond.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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