PHOENIX - The state Court of Appeals on Tuesday rejected a bid by prisoner-rights advocates 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 for background checks. Judge Michael Brown, writing for the court, rejected arguments that the fee is unconstitutional.
Donna Hamm, who filed the lawsuit on behalf of herself and her husband, James Hamm, said they are likely to seek Supreme Court review. She said the ruling is inconsistent.
Lawmakers authorized Corrections Director Charles Ryan to charge a background-check fee for 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 Hamms, who run 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 no authority for the couple's contention that the Arizona Constitution 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 she the judges "contradict themselves" by saying the proceeds have to be put into a building renewal fund.
Separate from the legal arguments, James Hamm argued against the measure in 2011 by saying the fee could price some family members out of being able to visit. State Rep. John Kavanagh, R-Fountain Hills, who put the provision into the state budget, rejected that assumption, noting that children younger than 18 are exempt from paying.
James Hamm was convicted of the 1974 murder in Tucson of Willard Morley, a Missouri college student who had come to Tucson to buy marijuana. After Hamm's release on parole, he graduated from law school. The Arizona Supreme Court in 2005 rejected his request to practice law.