In re Leon G.

• Decision Date: 16 December 2002
• Docket Number: No. CV-01-0062-PR.,CV-01-0062-PR.
• Citation: 59 P.3d 779,204 Ariz. 15
• Parties: In re the Matter of LEON G. State of Arizona, Petitioner, v. Hon. Susan A. Ehrlich, Hon. Cecil B. Patterson, Jr. and Hon. James B. Sult, Judges of the State of Arizona, in and for the Arizona Court of Appeals, Respondents, Eric Walker, Real Party in Interest.
• Court: Arizona Supreme Court

59 P.3d 779

204 Ariz. 15

In re the Matter of LEON G.

State of Arizona, Petitioner, v. Hon. Susan A. Ehrlich, Hon. Cecil B. Patterson, Jr. and Hon. James B. Sult, Judges of the State of Arizona, in and for the Arizona Court of Appeals, Respondents, Eric Walker, Real Party in Interest.

No. CV-01-0062-PR.

Supreme Court of Arizona, En Banc.

December 16, 2002.

Kristi A. Riggins, P.C. by Kristi A. Riggins, Phoenix, Attorney for Leon G.

Janet Napolitano, Arizona Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Quarles & Brady Streich Lang, LLP by Michael Owen Miller, Tucson, Phoenix, Attorneys for Amici Curiae Southern Arizona Center Against Sexual Assault, Center Against Sexual Abuse, and Arizona Voice for Victims, Inc.

Jamie McAlister Law Offices, LLC by Jamie McAlister, Phoenix, Attorney for Amicus Curiae Jamie McAlister.

Daphne Budge, Phoenix, Attorney for Walker.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 These consolidated actions consider whether Arizona's Sexually Violent Persons (SVP) act, Arizona Revised Statutes (A.R.S.) sections 36-3701 to 36-3717 (Supp.2002), comports with the substantive due process principles the United States Supreme Court outlined in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), and Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). We hold that the Arizona SVP act imposes proper procedures and evidentiary standards and sufficiently narrows the class of persons subject to commitment to assure compliance with constitutional requirements.

I.

¶ 2 A jury found beyond a reasonable doubt that Leon G. is a sexually violent person as defined in A.R.S. section 36-3701.7. Based on this finding, the trial judge ordered his commitment to the Arizona State Hospital, pursuant to A.R.S. section 36-3707.B.1.¹ The Court of Appeals vacated the order of commitment, concluding that the Arizona SVP statute violated his substantive due process rights under the Fourteenth Amendment of the United States Constitution. In re Leon G., 199 Ariz. 375, 381, ¶ 25, 18 P.3d 169, 175 (App.2001). We granted the State's petition for review pursuant to Arizona Constitution Article VI, Section 5.3, Arizona Rule of Civil Appellate Procedure 23, and A.R.S. section 12-120.24. After the Court of Appeals issued its decision in In re Leon G., Walker, who also had been adjudicated an SVP and committed to the State Hospital, moved for a release on the basis of that decision. The trial court granted his motion. The State then moved the Court of Appeals to issue a "blanket stay" of any releases granted pursuant to the Court of Appeals' Leon G. decision. The Court of Appeals temporarily stayed Walker's release but denied the request for a general stay. After the State filed a petition for special action in this court, we stayed all pending releases and accepted special action jurisdiction pursuant to Arizona Constitution Article VI, Section 5.3, and Arizona Rule of Procedure for Special Actions 8(b).

¶ 3 In In re Leon G., 200 Ariz. 298, 26 P.3d 481 (2001) vacated by Glick v. Arizona, 535 U.S. 982, 122 S.Ct. 1535, 152 L.Ed.2d 461 (2002), we held that Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), did not "impose `volitional impairment' as a separate requirement for civil commitment statutes." In re Leon G., 200 Ariz. at 301, ¶ 10, 26 P.3d at 484. We explained that the state satisfies its burden to show lack of control if the state establishes beyond a reasonable doubt not only that a person is dangerous, but also that a mental illness or disorder caused the dangerousness, making it highly probable that the person will engage in future acts of sexual violence. Id. at 302, 306, ¶¶ 12, 13, and 32, 26 P.3d at 485, 489.

¶ 4 Subsequent to our decision, the United States Supreme Court revisited Hendricks in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). After deciding Crane, the Court vacated our Leon G. opinion and remanded the case to this court "for further consideration in light of Kansas v. Crane." Glick v. Arizona, 535 U.S. 982, 122 S.Ct. 1535, 152 L.Ed.2d 461 (2002).

II.

¶ 5 In Kansas v. Hendricks, the United States Supreme Court considered the constitutionality of the Kansas Sexually Violent Predator Act (Kansas act) that governs the civil commitment of sexually violent predators.² Recognizing that an individual's "liberty interest is not absolute," the Court explained that "[s]tates have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety." Hendricks, 521 U.S. at 356-57, 117 S.Ct. at 2079.

¶ 6 Hendricks describes the "narrow circumstances" in which states may involuntarily confine individuals. First, "the confinement [must] take[ ] place pursuant to proper procedures and evidentiary standards." Id. at 357, 117 S.Ct. at 2080. Next, the state must restrict commitment to "a limited subclass of dangerous persons." Id. In addition, and of central importance here, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment." Id. at 358, 117 S.Ct. at 2080. Instead, civil commitment statutes must "couple[ ] proof of dangerousness with the proof of some additional factor, such as a `mental illness' or `mental abnormality.'" Id. These added statutory requirements, factors such as mental illness or mental abnormality, "serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control." Id.

¶ 7 The United States Supreme Court revisited Hendricks and the Kansas act in Kansas v. Crane, addressing mainly the requisite proof of lack of control needed to satisfy substantive due process. The Kansas Supreme Court had interpreted Hendricks as mandating "a finding that the defendant cannot control his dangerous behavior" and reversed the trial court's order committing Crane.³ In re Crane, 269 Kan. 578, 7 P.3d 285, 290, 294 (2000). The Supreme Court held that although Hendricks does not require total or complete lack of control "there must be proof of serious difficulty in controlling behavior" in civil commitment proceedings. Crane, 534 U.S. at ___, 122 S.Ct. at 870. This requisite lack of control, as well as "the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id.

¶ 8 Accordingly, to comport with substantive due process as articulated in Hendricks and Crane, Arizona's SVP act must impose proper procedures and evidentiary standards. Additionally, it must narrow the class of persons subject to commitment to only those who have "serious difficulty in controlling" their behavior to ensure the act sufficiently distinguishes those subject to civil commitment from the dangerous but typical recidivist.

¶ 9 We review the validity of a statute de novo and, if possible, construe it so as to uphold its constitutionality. Stewart v. Robertson, 45 Ariz. 143, 150-51, 40 P.2d 979, 983 (1935). We will not overturn an act of the legislature unless we are "satisfied beyond a reasonable doubt" that the statute fails to comply with the Constitution. State v. Gastelum, 75 Ariz. 271, 273, 255 P.2d 203, 204 (1953).

A.

¶ 10 We first examine the procedures and evidentiary standards of Arizona's SVP act.⁴ The statute defines an SVP as any person who "[h]as ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial" and who "[h]as a mental disorder that makes the person likely to engage in acts of sexual violence." A.R.S. § 36-3701.7. A mental disorder is "a paraphilia, personality disorder or conduct disorder or any combination of [those] that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others." A.R.S. § 36-3701.5.

¶ 11 An agency with jurisdiction over a person whom it believes to be an SVP must notify the attorney general or county attorney of the person's expected release from custody between thirty and one hundred eighty days before release. A.R.S. § 36-3702. The agency must provide the attorney general or county attorney with information about the underlying sexual offense and the person's psychiatric condition. Id. The attorney general or county attorney may then file a petition in superior court alleging that the person is an SVP. A.R.S. § 36-3704.

¶ 12 Upon receipt of such petition, the superior court judge determines whether probable cause exists to believe that the person is an SVP. A.R.S. § 36-3705. The person named in the petition may request a hearing on the issue of probable cause, at which he or she may introduce evidence, cross-examine witnesses, and review all information in the court's file. Id. If the judge determines that probable cause exists, the judge must order the person to be detained in a licensed facility under the supervision of the superintendent of the Arizona State Hospital and must order an evaluation of the person at the county's expense. Id.

¶ 13 Within one hundred twenty days of the petition, the court conducts a trial to determine if the person named in the petition is an SVP.⁵ A.R.S. § 36-3706. Either party may request a trial by jury. Id. The person named in the petition has a right to counsel, which the state must provide if the person is indigent. A.R.S. § 36-3704.C. In addition, the person has a right to an evaluation by a competent...