Blake v. Schwartz

• Decision Date: 05 February 2002
• Docket Number: No. 1 CA-SA 01-0168.,1 CA-SA 01-0168.
• Parties: Kelly Louise BLAKE, Petitioner, v. The Honorable Jonathan H. SCHWARTZ, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona; Arizona Psychiatric Security Review Board, Real Parties in Interest.
• Court: Arizona Court of Appeals

42 P.3d 6

202 Ariz. 120

Kelly Louise BLAKE, Petitioner, v. The Honorable Jonathan H. SCHWARTZ, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona; Arizona Psychiatric Security Review Board, Real Parties in Interest.

No. -0168.

Court of Appeals of Arizona, Division 1, Department C.

February 5, 2002.

As Amended February 21, 2002.

James J. Haas, Maricopa County Public Defender by Lawrence S. Matthew, Deputy Public Defender, Phoenix, Attorneys for Petitioner.

Richard M. Romley, Maricopa County Attorney by E. Catherine Leisch, Deputy County Attorney, Phoenix, Attorneys for Real Parties in Interest.

Janet Napolitano, Arizona Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Toni Valadez Kozub, Assistant Attorney General, Phoenix Attorneys for Real Parties in Interest.

OPINION

BARKER, Judge.

¶ 1 Kelly Louise Blake was found guilty except insane ("GEI") of murder, attempted murder, kidnapping, and arson of an occupied structure. The trial court committed Blake to the jurisdiction of the Psychiatric Security Review Board ("PSRB") pursuant to Arizona Revised Statutes ("A.R.S.") section 13-3994 (2001). Blake petitioned for review of the superior court's decision, arguing that A.R.S. § 13-3994(A), (F), and (G) are unconstitutional. The issues are as follows: (1) whether A.R.S. § 13-3994(A), (F), and (G) require a mandatory 120-day period of confinement, and (2) if so, whether a 120-day confinement period is constitutional.

¶ 2 We conclude that the statute allows the medical director to request a release hearing within the 120-day period referenced. The statute is constitutional on that basis. Accordingly, we do not reach the issue of whether an initial 120-day period without the prospect of release, for a GEI defendant guilty of a crime involving death or serious physical injury, would or would not be constitutional.

¶ 3 For the reasons that follow, we accept jurisdiction of this special action and deny relief.

Factual and Procedural History

¶ 4 In March 1998, Blake lured her three children into a shed. She then poured gasoline on them and set fire to her children and herself.¹ The fire killed two of her children. On June 19, 2001, the trial court, in a trial by submission, found Blake guilty except insane of murder, attempted murder and the other charges referenced. The trial court placed Blake under the jurisdiction of the PSRB, pursuant to A.R.S. § 13-3994(D), for the duration of her natural life.

¶ 5 Prior to commitment to the PSRB, an attorney sought to intervene on Blake's behalf and have portions of A.R.S. § 13-3994 declared unconstitutional. The trial judge denied the motion to intervene, but allowed Blake's defense lawyer to assert the same arguments. The trial judge then denied the motion on its merits; he held that the statute was constitutional. This special action followed.

¶ 6 The state's initial response to the special action was limited solely to the issue of jurisdiction. In reply, Blake asserted that PSRB had no administrative procedure allowing for a release hearing until 120 days after commitment. By subsequent order, we accepted jurisdiction and directed PSRB to brief this matter on its merits.

¶ 7 Special action jurisdiction is highly discretionary. See State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 219, 920 P.2d 784, 785 (App.1996)

. Special action jurisdiction is appropriate "where an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again." Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992). Additionally, special action jurisdiction may be considered when there is no adequate remedy by way of appeal. Luis A. v. Bayham-Lesselyong ex rel. County of Maricopa, 197 Ariz. 451, 453, 4 P.3d 994, 996 (App.2000).

¶ 8 Special action jurisdiction is appropriate here because this case raises an issue of statewide importance, is likely to recur, and turns solely on legal principles. Additionally, because the relief requested applies to the first 120 days after judgment, there is no adequate remedy by way of appeal.

Discussion

¶ 9 As noted, the issue is whether A.R.S. § 13-3994(A), (F), and (G) require a mandatory 120-day period of confinement. The constitutional argument is that if the 120-day period is mandatory, it may deprive a defendant of his or her due process rights. See Jones v. United States, 463 U.S. 354, 356-57, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983)

(determining that a 50-day confinement period was constitutional, but not defining the outer limit).

1. Standard of Review.

¶ 10 If possible, this court has a duty to construe a statute so that it will be constitutional. State v. McDonald, 191 Ariz. 118, 120, ¶ 11, 952 P.2d 1188, 1190 (App.1998). Our supreme court has held:

It is a cardinal rule of statutory construction that every intendment is in favor of the constitutionality of legislation, and unless its invalidity is established beyond a reasonable doubt it will be declared constitutional.

Roberts v. Spray, 71 Ariz. 60, 69, 223 P.2d 808, 813-14 (1950)(internal citation omitted).

¶ 11 When a constitutional construction of a statute is available, we are to prefer that construction:

It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided.

United States v. Clark, 445 U.S. 23, 27, 100 S.Ct. 895, 63 L.Ed.2d 171 (1980).

¶ 12 The instruction from Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988), is applicable here:

[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.

¶ 13 A selected history of the prior versions of A.R.S. § 13-3994, and the pertinent case law, is essential to properly considering the issues raised here.

2. History of A.R.S. § 13-3994.

¶ 14 In 1984, A.R.S. § 13-3994(D) provided that persons found insane at the time they committed a crime resulting in physical injury to another, or substantial risk of physical injury to another, were "not eligible for conditional release ... until at least two hundred thirty days ha[d] elapse[d] from the date of the initial commitment." 1984 Ariz. Sess. Laws, ch. 287, § 3. The Arizona Supreme Court, in State ex rel. Collins v. Superior Court (Mittenthal), held that this provision was unconstitutional. 150 Ariz. 295, 723 P.2d 644 (1986). The court found the mandatory 230 day provision violated due process because the statute provided no possibility of a release hearing, before the 230 days passed, to determine if the person was still insane. 150 Ariz. at 299, 723 P.2d at 648. The court reasoned that treatment and confinement are not required when a person no longer suffers from a mental disease. Id. Under those circumstances, the government's reason for confining the person—treatment—was no longer a legitimate governmental interest. Id. "Punishment ... is not a legitimate interest with regard to persons acquitted by reason of insanity. The person has not been convicted of a crime and cannot be punished." Id. Thus, the constitutional impairment was a mandatory 230-day commitment without the prospect of release.

¶ 15 After Mittenthal, the Arizona legislature amended § 13-3994 to address the constitutional issue. 1987 Ariz. Sess. Laws, ch. 144, § 1 ("1987 version"). The legislature shortened the length of time a defendant had to wait for a hearing to 120 days. Id. The 1987 version also provided that "the person committed may not seek a new release hearing less than six months after any prior release hearing unless on a petition filed by the ... treatment agency ... the court orders a hearing." Id. (emphasis added).

¶ 16 In 1992, this court found the 1987 version of the statute to be constitutional. State v. Helffrich, 174 Ariz. 1, 846 P.2d 151 (App.1992). Helffrich construed the statute to allow the treatment agency to seek a release at any time, even though defendants had to wait 120 days to request a release hearing for themselves. This interpretation was of critical importance: the statute met the requirements of due process because it reduced the time for a hearing from 230 days to 120 days and because it was construed to allow an opportunity for release prior to 120 days. The court stated:

This statute meets the requirements of due process because it reduces the maximum amount of time an acquittee must wait for a conditional release hearing to 120 days and also allows for an expedited hearing based upon a petition filed by the evaluating or treating agency stating that the acquittee is no longer suffering from a mental disorder. This law is flexible and responsive to an acquittee's improved mental condition, thereby overcoming the criticism of the earlier statute by the court in [Mittenthal].

Helffrich, 174 Ariz. at 6, 846 P.2d at 156 (emphasis added). The complete language of the applicable 1987 version provided:

A person committed or the physician or psychologist treating the person committed may not seek a new release hearing less than six months after any prior release hearing—unless, on a petition filed by the secure mental health evaluation or treatment agency alleging the person is no longer suffering from a mental disorder or is no longer a danger to himself or others, the court orders a hearing.

1987 Ariz. Sess. Laws, ch. 144, § 1 (emphasis indicating legislative change). Thus, it is important to note that Helffrich rejected the interpretation that the right of a treatment agency to request an "expedited hearing" was limited to requests after a prior release hearing. The treatment agency was determined to have the right to request...