The state Court of Appeals on Tuesday rejected a bid by prisoner rights advocates, including a convicted murderer, to void a new fee being charged to visitors.
Without dissent, the appellate judges said legislators did nothing wrong in approving a 2011 measure requiring those who want to visit inmates to pay a one-time fee. Judge Michael Brown, writing for the court, rejected arguments the fee is unconstitutional.
Tuesday's ruling, however, may not be the last word. Donna Hamm, who filed the lawsuit on behalf of herself and her husband, James said they are likely to seek Supreme Court review. She said the ruling is not only disappointing but inconsistent.
Lawmakers authorized Corrections Director Charles Ryan to charge a fee to defray the costs of doing background checks on those who want to enter the secure facilities. Ryan said he picked $25 because it reflects the low end of what the Department of Public Safety charges private individuals for background checks legally required for employment purposes.
But the couple, which runs the inmate rights group Middle Ground, argued the funds are not being used to pay for background checks but instead for building renewal and maintenance for all the structures run by the Department of Corrections. That, they argued, makes the fee unconstitutional.
Brown, however, said the judges have found not authority for the couple's contention that that the Arizona Constitution requires that makes it illegal to use the proceeds from any fee solely for the items reflected in the fee's name.
"They kind of seem to be saying it doesn't matter what label you stick on it,'' Donna Hamm said Tuesday. "They can use the money for whatever they want.''
But Hamm said the judges "contradict themselves'' by saying the proceeds have to be put into a building renewal fund.
Separate from the legal arguments, James Hamm had argued against the measure in 2011 as a matter of policy. He said that for prisoners with parents and several siblings the cost could price them out of being able to visit, which, he said, will lead to "greater frustration and anger among the inmates.''
But state Rep. John Kavanagh, R-Fountain Hills, who put the provision into the state budget, rejected that assumption.
"If a one-time charge of $25 is enough to dissuade you from visiting your loved one, then I'm wondering how much of a loved one he or she is,'' he said at the time. And Ryan noted children younger than 18 are exempt.
James Hamm was convicted of the 1974 murder in Tucson of Willard Morley, a Missouri college student who had come to Tucson to purchase marijuana. Hamm, working with an accomplice, agreed to make the sale and directed the students to drive into the desert, with Hamm and his ally in the back seat.
As Morley stopped the car, Hamm shot him in the back of the head. His accomplice shot the other student as he tried to escape. The pair took $1,400 from the glove box of the car and left the victims lying in the desert.
After Hamm's release but while on parole he graduated from the Arizona State University College of Law. But the Arizona Supreme Court in 2005 rejected his request to practice law, saying he had not presented evidence he had been rehabilitated and was of "good moral character,'' necessary prerequisites to becoming a lawyer in Arizona.