[00:00:01] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
May it please the Court, Randy McDonald on behalf of the Petitioner Bradley Bagansky.

[00:00:07] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:09] Speaker 01:
Counsel, can you keep your voice up just a little bit?

[00:00:11] Speaker 01:
Oh, I'm sorry.

[00:00:12] Speaker 04:
You could also raise that lectern a little bit.

[00:00:15] Speaker 04:
There's a button that might help get the microphone closer to you.

[00:00:19] Speaker 01:
I'll try and make this work.

[00:00:20] Speaker 01:
That's better.

[00:00:21] Speaker 01:
Can you hear me?

[00:00:21] Speaker 01:
Okay, great.

[00:00:23] Speaker 01:
For about 50 years, in a long line of cases, including in Ray Winship, Mulvaney v. Wilbur, and Patterson v. New York,

[00:00:31] Speaker 01:
The Supreme Court has held that a state may not, consistent with the due process clause of the United States Constitution, shift the burden of disproving an essential element of an offense to a defendant.

[00:00:44] Speaker 01:
And yet that is exactly what happened here.

[00:00:46] Speaker 01:
That decision of the state court is contrary to and an unreasonable application of clearly established federal law.

[00:00:55] Speaker 01:
I think this court should begin, as the court in Mulvaney did, with the clear history of Arizona's child molestation statute.

[00:01:08] Speaker 01:
Since statehood, sexual motivation for touching has been an essential element of that offense.

[00:01:19] Speaker 01:
And indeed, up until today,

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The core conduct that the statute has attempted to prohibit is the sexually motivated touching of a child under the age of 15.

[00:01:35] Speaker 01:
The only thing that has changed in the statute between 1913 and now, in the fundamental sense, is that after Holly II, the decision by the Arizona Supreme Court,

[00:01:49] Speaker 01:
the burden of proving sexual motivation shifted from the state to the defendant.

[00:01:57] Speaker 04:
So, counsel, Supreme Court precedent says that states have wide leeway in setting the elements of a criminal offense.

[00:02:06] Speaker 04:
And when you read the statute, sexual intent is not listed in the elements.

[00:02:11] Speaker 04:
It's an affirmative defense that's available.

[00:02:15] Speaker 04:
Can Arizona not make

[00:02:17] Speaker 04:
sexual molestation, essentially a strict liability crime?

[00:02:21] Speaker 01:
So I think that the error that the district court made in this case was to frame the question, I think, in that way, whether writing on a blank slate, a state may define molestation in a certain way to not include an element of sexual intent.

[00:02:40] Speaker 01:
But that's not, I think, what happened here.

[00:02:43] Speaker 01:
And that's not, I think, what

[00:02:44] Speaker 01:
the Supreme Court precedent says.

[00:02:46] Speaker 01:
That question, while it may implicate some sort of broadness or vagueness challenge, is not, I think, what we're focused on here today.

[00:02:56] Speaker 01:
What Patterson says, and if I could quote from Patterson, Mulvaney surely held that a state must prove every ingredient of an offense beyond a reasonable doubt and that it may not shift the burden of proof to the defendant by presuming that ingredient

[00:03:10] Speaker 01:
upon proof of the other elements.

[00:03:12] Speaker 01:
Such shifting of the burden of persuasion with respect to a fact which the state deems so important that it must either be proved or presumed is impermissible under the due process clause.

[00:03:23] Speaker 04:
So Mulvaney, the issue is that the state, the statute presumed malice aforethought for the murder statute, right?

[00:03:31] Speaker 04:
So if sexual intent is simply not an element of sexual molestation, why do we conclude that the state's now

[00:03:40] Speaker 04:
presuming sexual intent.

[00:03:42] Speaker 01:
So looking strictly at the statutory language, I agree that the word affirmative defense is used to describe the lack of sexual motivation.

[00:03:52] Speaker 01:
But if you look, as the court in Mulvaney did, to the clear how the statute was being interpreted by the courts of the state, how Arizona courts have defined molestation is that it has always required an element of sexual motivation.

[00:04:06] Speaker 04:
So even when Patterson and Mulvaney

[00:04:09] Speaker 04:
I don't recall those cases doing any sort of deep dive into historical analysis of the statutes.

[00:04:16] Speaker 01:
So Mulvaney does discuss sort of the beginning point as being the history and tradition of the statute, at least as far as the question of what is the statute?

[00:04:30] Speaker 01:
What are the elements of the offense?

[00:04:33] Speaker 01:
Patterson, I think I agree with you, does not necessarily delve very deeply into the history.

[00:04:38] Speaker 04:
And Patterson can, I think, can be fairly read as limiting Mulvaney.

[00:04:43] Speaker 01:
I think that's true in that Mulvaney sort of established a broad statement of the law and Patterson began to explain the contours of that broad statement.

[00:04:57] Speaker 01:
But I think even Patterson acknowledges that there are

[00:05:01] Speaker 01:
uh, extents to which a state may not go when redefining elements as affirmative defenses, which is what the state of Arizona did here.

[00:05:10] Speaker 01:
And I think it's worth noting that even after the Arizona legislature redefined, uh, sexual motivation or lack thereof as a affirmative defense, uh, Arizona courts continue to say, well, it's permissible for us to say, yes, this is an affirmative defense because at the time Arizona law

[00:05:27] Speaker 01:
required the state to disprove an affirmative defense once a small amount of evidence has been presented by the defense.

[00:05:35] Speaker 01:
It wasn't until the 1997 statutory changes

[00:05:39] Speaker 01:
that shifted the burden to the defendant to disprove an affirmative defense, that this really got into play.

[00:05:48] Speaker 01:
And I think that change, at least as far as the molestation statute, was unintentional.

[00:05:54] Speaker 01:
You still see courts

[00:05:58] Speaker 01:
sort of presuming that sexual motivation is an element.

[00:06:02] Speaker 01:
There is a split between so and so.

[00:06:04] Speaker 00:
Just to make sure I understand, until the 1997 changes, if the defendant came forward and said, I wasn't motivated by sexual intent here, then the state did have to come back and prove sexual intent by

[00:06:18] Speaker 00:
preponderance of the evidence or clear and convincing or beyond a reasonable doubt.

[00:06:22] Speaker 01:
So I believe the standard is beyond a reasonable doubt.

[00:06:25] Speaker 01:
So it was still in effect an element of the crime and even after

[00:06:32] Speaker 01:
the shift of the burden for the affirmative defenses, the core conduct that the state was trying to prohibit did not change.

[00:06:42] Speaker 01:
The state had previously said, we want to prohibit sexual conduct, and we're defining that as conduct that includes sexual motivation.

[00:06:51] Speaker 01:
And that is still how they're defining that conduct that they're trying to prohibit.

[00:06:55] Speaker 01:
The only difference is, after the change in statute, the burden of disproving sexual intent was on the defendant.

[00:07:03] Speaker 01:
So this is not a question of whether writ large any state could define a statutory scheme in a certain way.

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It's having said, here is the important element that we are trying to prohibit.

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and that is sexual conduct, conduct with a sexual motivation.

[00:07:19] Speaker 01:
Arizona has always defined the molestation statute around prohibiting that conduct.

[00:07:25] Speaker 01:
It's just a question of who has the burden of proving or disproving that that element is present.

[00:07:34] Speaker 04:
Did you want to reserve?

[00:07:35] Speaker 01:
I do want to reserve some time, but if there are any further questions.

[00:07:38] Speaker 04:
Thank you.

[00:07:39] Speaker 01:
Thank you.

[00:07:50] Speaker 03:
Good morning, and may it please the court.

[00:07:53] Speaker 03:
Mariette Ambry for respondents.

[00:07:55] Speaker 03:
What I was going to do was respond to counsel's argument, unless the court would like me to start elsewhere.

[00:08:03] Speaker 03:
First of all, I think it's important to distinguish between the two concepts that are kind of getting melded together.

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And one of those is burden shifting, which the US Supreme Court has made clear

[00:08:19] Speaker 03:
is a violates the due process.

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And that is shifting the element of an offense to the defendant to disprove.

[00:08:28] Speaker 03:
And the Arizona here has the Arizona Supreme Court as a matter of state law, which is not reviewable by this court, stated that the crime of sexual molestation does not include

[00:08:46] Speaker 03:
the sexual motivation component.

[00:08:49] Speaker 00:
I've got a couple of questions for you.

[00:08:53] Speaker 00:
This statute prohibits any touching.

[00:08:57] Speaker 00:
The words fondling and manipulating do no work in this statute if I read Holly correctly.

[00:09:02] Speaker 00:
Touching seems to subsume everything.

[00:09:05] Speaker 00:
Both the majority and the dissent in Holley 2 use the example of diapering, apparently without protest.

[00:09:13] Speaker 00:
So am I to understand that every parent who changes a diaper in Arizona is guilty of molestation?

[00:09:22] Speaker 00:
That seems to be pretty clear from Holley 2, doesn't it?

[00:09:25] Speaker 00:
Are you going to defend Holley 2?

[00:09:26] Speaker 03:
That's true.

[00:09:28] Speaker 00:
Or is the AG going to walk away from Holly, too?

[00:09:30] Speaker 03:
No, no, no.

[00:09:31] Speaker 03:
But I was just going to say that there's a prima facie case of molestation, and then there's the affirmative defense that goes along with it.

[00:09:39] Speaker 03:
So they're sort of hand in hand.

[00:09:40] Speaker 00:
Well, they can't be hand in hand.

[00:09:42] Speaker 00:
The affirmative defense can be waived.

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They can be negligently ignored.

[00:09:46] Speaker 00:
Somebody may forget to look in the statute to see if it's there.

[00:09:49] Speaker 00:
So the question is, is diapering

[00:09:54] Speaker 00:
a child molestation under Arizona law?

[00:09:57] Speaker 03:
Well, yes.

[00:09:58] Speaker 00:
Okay, so every parent who changes a diaper has committed the crime of child molestation.

[00:10:04] Speaker 00:
Is that correct?

[00:10:06] Speaker 03:
Well, yeah, but I would just point out, though, there are comparatively broad statutes.

[00:10:12] Speaker 03:
As Holly pointed out, the assault statute, which criminalizes

[00:10:19] Speaker 03:
you know, physical injury, which, you know, would happen, you know, doctors would... Sure.

[00:10:23] Speaker 00:
But we have some other things, we have a couple of other things that we need to consider.

[00:10:26] Speaker 00:
First of all, there's also a mandatory reporting requirement.

[00:10:30] Speaker 02:
Right.

[00:10:31] Speaker 00:
So the wife of somebody who's changing a diaper would be a mandatory reporter and would also be guilty of furthering this if she did not report that her husband had changed a diaper.

[00:10:42] Speaker 00:
Is that correct?

[00:10:44] Speaker 03:
I guess I...

[00:10:47] Speaker 03:
I guess I don't know about mandatory reporting.

[00:10:51] Speaker 00:
But you also have statutes that punish criminal neglect of a child.

[00:10:58] Speaker 00:
It's both a misdemeanor and a felony under Arizona law.

[00:11:02] Speaker 00:
So if you fail to change the diaper, then you can be reported to CPS and prosecuted in that way.

[00:11:08] Speaker 00:
Is that correct?

[00:11:11] Speaker 00:
So no matter what you do with the diaper, Arizona has got you coming and going.

[00:11:15] Speaker 00:
You are guilty no matter whether you change the diaper or whether you don't change the diaper, and now it's your burden to prove that you're innocent.

[00:11:25] Speaker 03:
Well, Your Honor, such prosecutions wouldn't

[00:11:32] Speaker 00:
And the Supreme Court has said that we are not to rely on what the Supreme Court referred to as the noblesse oblige of the prosecutor.

[00:11:42] Speaker 03:
But Your Honor, though, I think what is critical here is that this review is under EDPA.

[00:11:47] Speaker 03:
And so what this court has to find is that the Arizona Supreme Court's decision was unreasonable application of US Supreme Court law or contrary to it.

[00:12:02] Speaker 03:
And the Supreme Court has said that state legislatures have broad authority to define their crimes and to codify offenses.

[00:12:10] Speaker 00:
But you've just criminalized everybody in Arizona.

[00:12:14] Speaker 00:
Anytime a parent changes a diaper in Arizona, this is conceded by the Supreme Court.

[00:12:20] Speaker 00:
Every parent who changes a diaper is guilty of child molestation, and if prosecuted and convicted, they would be sexual predators and would have to report.

[00:12:33] Speaker 03:
Well, Holly has also noted that there is the as-applied, there's theoretical in Holly, but the as-applied situation.

[00:12:41] Speaker 00:
In which we would now have to come back on the as-applied, as I recall in Holly 2, citing Santoski and other cases,

[00:12:48] Speaker 00:
You would have to come back and show that parents had a constitutional right to change a diaper, because it was talking about the constitutional rights of parents.

[00:12:56] Speaker 00:
Those are very, very broad rights.

[00:12:59] Speaker 00:
That's substantive due process.

[00:13:01] Speaker 03:
Right.

[00:13:02] Speaker 00:
But, Your Honor, there... Is Arizona willing to concede that parents have the right to change a diaper?

[00:13:08] Speaker 03:
I would presume, yes.

[00:13:10] Speaker 03:
Yes, but what I just would say is that the Supreme Court has not yet set limitations on what

[00:13:18] Speaker 03:
when a statute encompasses too much innocent conduct.

[00:13:22] Speaker 00:
Can you think of any other case in which everyone in Arizona who changes a diaper is guilty of child molestation unless they come forward and prove that they were not sexually motivated?

[00:13:39] Speaker 00:
That's breathtaking.

[00:13:43] Speaker 00:
As I mentioned, it's under... And Arizona's position is, you haven't shifted any burdens here.

[00:13:49] Speaker 00:
Every parent in Arizona is guilty, but you haven't shifted any burdens?

[00:13:56] Speaker 03:
Well, as far as burden shifting, as I mentioned, that is when an element of the crime is disproved by the affirmative defense.

[00:14:04] Speaker 03:
And the Arizona Supreme Court, as a matter of state law, said that sexual motivation is not an element of the crime.

[00:14:11] Speaker 03:
So that is burden shifting.

[00:14:12] Speaker 03:
The issue before this court is whether Arizona needs to require in its statute that sexual motivation is shown.

[00:14:22] Speaker 03:
And Patterson has said that there are limits to when a state can take an element and make it into an affirmative defense.

[00:14:35] Speaker 03:
But it's very broad.

[00:14:38] Speaker 03:
Pitched at a very high general level.

[00:14:40] Speaker 02:
This case is a little bit more than just doing that, right?

[00:14:43] Speaker 02:
Factually, wasn't Big Lansky tried once when this was an element of the offense?

[00:14:52] Speaker 03:
Right.

[00:14:53] Speaker 02:
And hung jury?

[00:14:54] Speaker 03:
No, actually that was because one of the minor witnesses testified to three instances of molestation rather than one.

[00:15:03] Speaker 03:
That's why there was a mistrial.

[00:15:06] Speaker 03:
in that case.

[00:15:07] Speaker 00:
And he was acquitted on some charges here?

[00:15:10] Speaker 03:
He was, yes, which showed that the jury paid very close attention to the facts.

[00:15:14] Speaker 00:
Does Arizona instruct juries routinely on jury nullification?

[00:15:20] Speaker 03:
Not that I know of.

[00:15:21] Speaker 00:
Okay.

[00:15:22] Speaker 00:
So a prosecutor could charge broadly parents in Arizona who are changing diapers

[00:15:27] Speaker 00:
And juries might refuse to convict, or a grand jury might refuse to indict.

[00:15:33] Speaker 00:
But that would be an instance of jury nullification, which a grand jury would be entitled to do, but which Arizona does not instruct for.

[00:15:40] Speaker 03:
Right.

[00:15:40] Speaker 03:
And it's just, it strains credulity that parents would be prosecuted.

[00:15:46] Speaker 00:
Why is it incredulous?

[00:15:47] Speaker 00:
That's the plain reading of the statute.

[00:15:49] Speaker 00:
And that's what the Arizona Supreme Court said?

[00:15:51] Speaker 00:
It was plain text?

[00:15:53] Speaker 03:
Well, because when the prosecutor goes before the grand jury,

[00:15:58] Speaker 03:
it would present the law, which is that this is the statute and it's an affirmative defense, that there was no sexual motivation here.

[00:16:06] Speaker 03:
So the prosecutor would have to present both sides to the grand jury.

[00:16:11] Speaker 00:
Would a mandatory reporter, so let's suppose that we had

[00:16:15] Speaker 00:
that we had two people who were in charge of the daycare and had to routinely change the diapers on infants.

[00:16:25] Speaker 00:
Changing the diaper, again, would make one chargeable for child molestation under the statute.

[00:16:31] Speaker 00:
The other one is a mandatory reporter.

[00:16:34] Speaker 00:
Is the mandatory reporter excused under Arizona law if she believes that there is an affirmative defense?

[00:16:41] Speaker 03:
I don't know that.

[00:16:43] Speaker 00:
It seems a little preposterous, doesn't it?

[00:16:45] Speaker 03:
Yeah.

[00:16:47] Speaker 03:
Right.

[00:16:47] Speaker 03:
But again, this all comes back to EDPA, Your Honors.

[00:16:50] Speaker 03:
I mean, there has to be U.S.

[00:16:52] Speaker 03:
Supreme Court law that says that Arizona cannot structure its statute that way.

[00:16:57] Speaker 03:
And there's just general language that Arizona cannot, I'm sorry, not Arizona, but the state's, state legislatures.

[00:17:05] Speaker 03:
There's some limit to that, but it hasn't been defined by the U.S.

[00:17:08] Speaker 03:
Supreme Court.

[00:17:09] Speaker 03:
And so that's where the case law stands today.

[00:17:13] Speaker 03:
And so, EDPA governs here, of course.

[00:17:19] Speaker 02:
In any event, the statute's been changed, right?

[00:17:22] Speaker 03:
Yes, it has been changed, yes.

[00:17:33] Speaker 03:
Okay, so, and then as far as the,

[00:17:37] Speaker 03:
I just wanted to go through, as far as the historical analysis in Mulaney, I think Your Honor noted that Mulaney has been very much limited by Patterson.

[00:17:49] Speaker 03:
And Mulaney itself didn't seem to rely on the historical analysis anyhow because in that, that was an instance of true burden shifting where an element was negated by an affirmative defense, which is unconstitutional.

[00:18:04] Speaker 03:
unlike what happened here, which is just the imposition of an affirmative defense on a defendant that does not negate an element.

[00:18:18] Speaker 03:
If your honors have any more questions?

[00:18:22] Speaker 03:
I think so.

[00:18:22] Speaker 03:
Thank you.

[00:18:23] Speaker 03:
Thank you.

[00:18:30] Speaker 01:
I think I'd like to first answer a question, Judge Hawkins, that you asked about the first and the second trial.

[00:18:35] Speaker 01:
And I think you hit the nail on the head.

[00:18:37] Speaker 01:
In the first trial, it was very clear that the trial court believed the state had the burden of proving sexual motivation.

[00:18:44] Speaker 01:
In between the first and second trial, Holly 2 happened.

[00:18:47] Speaker 01:
And by the second trial, it was very clear that the trial court believed it was bound by Holly 2, although it was extremely uncomfortable with that.

[00:18:54] Speaker 01:
If you look at the trial court's statements during that second trial, it says things like,

[00:18:59] Speaker 01:
You know, the state may as well may be happy to just to have the burden the way it was because it viewed this as a constitutional issue that could come up as it has here.

[00:19:10] Speaker 01:
But I think the fact that in the first trial, the burden belonged to the state and in the second trial, the burden belonged to the defendant.

[00:19:18] Speaker 01:
I cannot imagine a starker example of burden shifting exactly as is described in Patterson.

[00:19:26] Speaker 01:
and in Mulvaney.

[00:19:27] Speaker 00:
Council, did you seek cert?

[00:19:32] Speaker 01:
So I was not involved in the case at that time, but I do believe that... Are you asking in this case or in this poly?

[00:19:38] Speaker 00:
Yeah, in this case.

[00:19:39] Speaker 00:
No, in this case.

[00:19:40] Speaker 01:
In this case, I don't know the answer to that.

[00:19:42] Speaker 01:
I don't think so in this case, but I could be mistaken about that.

[00:19:48] Speaker 01:
So, but I do know that the Holly defendants did seek cert from the United States Supreme Court, and that was not granted, which is sort of why we're here.

[00:20:00] Speaker 01:
And I think I want to address the state's conclusion that the question here is whether the state can define sexual molestation to include or not include an element of sexual intent.

[00:20:15] Speaker 01:
And again, that's not the question that we're here.

[00:20:18] Speaker 01:
The question that we're here answering is, having defined molestation for a hundred years to include as an element that sexual intent was present, can the state then say, yes, sexual intent is still a part of this and we only want to prohibit touching that includes a sexual element?

[00:20:39] Speaker 01:
except we're going to shift the burden to the defendant.

[00:20:42] Speaker 01:
And that is exactly what has happened here.

[00:20:44] Speaker 01:
That is exactly what the Supreme Court has said is not permissible in Patterson.

[00:20:48] Speaker 01:
I want to say that I think Judge Wake does an excellent job of analyzing this in the May versus Ryan decision, which was reversed by this court for procedural reasons, not based on the merits.

[00:20:59] Speaker 01:
And if there are no further questions, I see my time is up.

[00:21:03] Speaker 04:
Thank you.

[00:21:04] Speaker 04:
Counsel, thank you both for your arguments this morning.