Hiskett v. Hon. lambert/state
1 CA-SA 19-0119
Ariz. Ct. App.Oct 1, 2019Background
- Petitioner Robert Hiskett charged with three counts of sexual conduct with a minor, triggering A.R.S. § 13-3967(E)(1), which requires "electronic monitoring where available" as a pretrial condition for specified sex offenses.
- The superior court released Hiskett on his own recognizance but ordered him to wear a GPS monitor and to pay all associated costs (about $150 down and ~$10/day).
- Hiskett moved to modify release, arguing Mohave County must pay for statutorily mandated pretrial monitoring and that subsection (E)(1) is unconstitutional; the State took no position at the hearing.
- The superior court concluded monitoring was not "available" in Mohave County because the county would not/would not pay, revoked Hiskett's OR release, and set secured bond at $100,000; Hiskett sought special action review.
- This Court accepted special action, vacated the bond and the order requiring Hiskett to pay, held that a court lacks statutory authority to require a pretrial defendant to pay monitoring costs under § 13-3967(E)(1), and directed the superior court to hold a hearing on actual availability and county ability to pay; if available, monitoring must be provided at county expense.
Issues
| Issue | Hiskett's Argument | State/Mohave County/Superior Court Argument | Held |
|---|---|---|---|
| Whether § 13-3967(E)(1) authorizes shifting the cost of pretrial electronic monitoring to a defendant | Statute is silent on cost; counties must fund monitoring — defendant cannot be required to pay | Superior court required defendant to pay; Mohave County did not take a position in proceedings | Court held statute does not authorize imposing pretrial monitoring costs on a defendant; county must bear expense when monitoring is "available" |
| What "where available" means for § 13-3967(E)(1) | Means monitoring is available if the county can and will fund/provide it; county cannot evade duty by refusing to pay | Superior court treated county unwillingness to pay as rendering monitoring unavailable | Court interpreted "where available" to include actual availability and county financial ability; ordered evidentiary hearing on availability and county ability to pay |
| Whether superior court properly found monitoring unavailable in Mohave County and revoked OR release / set $100,000 bond | Court erred—no evidentiary record supported unavailability finding; revocation and bond improper without individualized factual findings | Superior court relied on anecdotal impressions and statements about county unwillingness/political repercussions | Court found the unavailability determination unsupported and vacated it; remanded for a hearing where court must develop record and make statutory Findings before altering release/bail |
| Constitutional challenges to mandatory monitoring and bail (search, due process, excessive bail) | Monitoring condition facially and as-applied unconstitutional; bail excessive | State took no position; parties briefed constitutional issues to this Court | Court declined to address constitutional claims as unnecessary and advisory given its statutory disposition; left constitutional issues for further proceedings if needed |
Key Cases Cited
- State v. Reyes, 232 Ariz. 468 (App. 2013) (court refused to permit fee-shifting where statute mandating DNA testing was silent about who must pay)
- Haag v. Steinle, 227 Ariz. 212 (App. 2011) (legislative history shows "where available" recognizes counties vary in monitoring capability)
- State v. Kearney ex rel. Pima Cty., 206 Ariz. 547 (App. 2003) (statutory interpretation reviewed de novo)
- Calmat of Arizona v. State ex rel. Miller, 176 Ariz. 190 (1993) (when statute is silent courts consider effects, purpose, and consequences)
- Kriz v. Buckeye Petroleum Co., 145 Ariz. 374 (1985) (interpretation begins with statutory text and will not expand beyond legislative intent)