In re Leon G.

• Decision Date: 12 July 2001
• Docket Number: No. CV-01-0062-PR, No. CV-01-0063-SA.
• Citation: 26 P.3d 481,200 Ariz. 298
• 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

26 P.3d 481

200 Ariz. 298

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.

Nos. CV-01-0062-PR, CV-01-0063-SA.

Supreme Court of Arizona, En Banc.

July 12, 2001.

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

Janet Napolitano, The 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, Phoenix, by Michael Owen Miller, Tucson, 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, Justice.

¶ 1 These consolidated actions consider whether Arizona's Sexually Violent Persons (SVP) statute, Arizona Revised Statutes (A.R.S.) sections 36-3701 to 36-3717, violates the substantive due process rights of persons committed pursuant to that statute.

I.

¶ 2 A jury found beyond a reasonable doubt that Leon G. is an SVP 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. The Court of Appeals reversed the order of commitment, concluding that the Arizona statute violated his substantive due process rights under the Fourteenth Amendment of the United States Constitution.¹ We granted the State's petition for review pursuant to Arizona Constitution Article 6, Section 5.3, Arizona Rule of Civil Appellate Procedure 23, and A.R.S. section 12-120.24, and now affirm the judgment of the trial court.

¶ 3 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 Leon G. decision. The Court of Appeals temporarily stayed Walker's release, but denied the request for a general stay. The State filed a petition for special action in this court. We stayed all pending releases, accepted special action jurisdiction pursuant to Arizona Constitution Article 6, Section 5.3 and Arizona Rule of Procedure for Special Actions 8(b), and now grant relief.

II.

¶ 4 Before turning to the constitutional issue, we consider whether it is properly before us. Leon G.'s appointed appellate counsel filed an Anders brief that raised no issues on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

; see also State v. Leon, 104 Ariz. 297, 299, 451 P.2d 878, 880 (1969). The Court of Appeals concluded that the Anders procedure applies to appeals under the SVP act. Accordingly, after reviewing the record for error, the court independently raised the question whether the SVP act violates the principles of substantive due process and ordered supplemental briefing.

¶ 5 In Anders, the petitioner had been convicted in state court. The state appointed counsel for purposes of Anders' appeal. 386 U.S. at 739, 87 S.Ct. 1396. After reviewing the trial record, Anders' appointed counsel concluded that an appeal would lack merit. Id. He advised the court of his conclusion by letter and also informed the court that Anders wished to file his own brief. Id. at 739-40, 87 S.Ct. 1396.

¶ 6 The Court, concerned that "California's procedure did not furnish [Anders] with counsel acting in the role of an advocate nor ... that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity," found that the actions of Anders' attorney had denied him his Sixth Amendment right to counsel. Id. at 743, 87 S.Ct. 1396. The Court mandated the following procedure in cases in which counsel appointed to fulfill the Sixth Amendment right to counsel concludes an appeal lacks merit:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits ... it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744, 87 S.Ct. 1396. Therefore, a criminal defendant whose appointed counsel believes that his case presents no meritorious issues for appeal remains entitled to an examination of the record by the reviewing court. Id.; see also Leon, 104 Ariz. at 299,

451 P.2d at 880.

¶ 7 The right to full review of the record on appeal when appointed counsel files an Anders brief, attached as it is to the Sixth Amendment right to counsel in criminal cases, does not apply in civil proceedings. See, e.g., Denise H. v. Arizona Dep't of Econ. Sec., 193 Ariz. 257, 259 ¶ 7, 972 P.2d 241, 243 ¶ 7 (App.1998) (parent in termination of parental rights proceeding); Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 466 n. 5, 949 P.2d 552, 555 n. 5 (App.1997) (plaintiff in tort suit); Ortega v. Holmes, 118 Ariz. 455, 456, 577 P.2d 741, 742 (App.1978) (prisoner's application for voluntary transfer to state hospital). Commitment proceedings under the SVP statute are civil in nature. Martin v. Reinstein, 195 Ariz. 293, 307 ¶¶ 39, 41, 987 P.2d 779, 793 ¶¶ 39, 41 (App.1999) (holding that the statute does not raise either double jeopardy or ex post facto problems because it is civil, rather than criminal, in nature); cf. Kansas v. Hendricks, 521 U.S. 346, 361-69, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)

(discussing civil nature of analogous Kansas act). Therefore, the Anders procedure does not apply to persons committed under the SVP statute.

¶ 8 Because Leon G.'s appeal did not raise the substantive due process issue on which he now relies, we could decline to address that issue. See State v. Youngblood, 173 Ariz. 502, 504, 844 P.2d 1152, 1154 (1993)

("Even on direct appeal, we generally refuse to consider claims that are not raised below."). Although we ordinarily do not examine questions not preserved on appeal, we have made exceptions to consider questions that are of great public importance or likely to recur. See Schwab v. Matley, 164 Ariz. 421, 422 n. 2, 793 P.2d 1088, 1089 n. 2 (1990); Fraternal Order of Police Lodge 2 v. Phoenix Employee Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982). This action meets those exceptional criteria. Therefore, in the interests of judicial economy, and because the parties have fully argued the issue presented, we will consider whether the SVP statute complies with substantive due process requirements.

III.

¶ 9 The Supreme Court of the United States most recently addressed the substantive due process requirements for civil commitment statutes in Kansas v. Hendricks, 521 U.S. 346, 356-60, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In that case, it examined the constitutionality of the Kansas statute that governs the commitment of sexually violent persons. Id. at 350, 117 S.Ct. 2072. Addressing Hendricks' substantive due process claim, the Court noted that "[a]lthough freedom from physical restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action, that liberty interest is not absolute[, and] ... an individual's constitutionally protected interest in avoiding physical restraint may be overridden." Id. at 356, 117 S.Ct. 2072 (internal citations and quotations omitted). In Leon G., the Court of Appeals held that, under Hendricks, the state can commit a sexually violent person only upon showing that the person has a volitional impairment that renders him dangerous beyond his control. In re Leon G., 199 Ariz. 375, 380 ¶ 18, 18 P.3d 169, 174 ¶ 18 (App.2001). The court based its holding on the Hendricks Court's reference both to the Kansas statutory language invoking volitional control and to Hendricks' admitted lack of control. 199 Ariz. at 379 ¶¶ 15-17, 18 P.3d at 173 ¶¶ 15-17; cf. In re Crane, 269 Kan. 578, 7 P.3d 285 (2000)

(drawing same conclusion), cert. granted, ___ U.S. ___, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001).

¶ 10 We believe the Court of Appeals read Hendricks too narrowly and intermingled fact-specific comments in that decision with principles central to its holding. We do not understand Hendricks to impose "volitional impairment" as a separate requirement for civil commitment statutes.

¶ 11 Hendricks summarizes several requirements for involuntary civil commitment proceedings. First, the confinement must take place "pursuant to proper procedures and evidentiary standards." 521 U.S. at 357,117 S.Ct. 2072. 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. 2072. Instead, civil commitment statutes must "couple[] proof of dangerousness with the proof of some additional factor, such as a `mental illness' or...