In re MH2021-005634

• Decision Date: 03 May 2022
• Docket Number: 1 CA-MH 21-0059
• Parties: IN RE: MH2021-005634
• Court: Arizona Court of Appeals

IN RE: MH2021-005634

No. 1 CA-MH 21-0059

Court of Appeals of Arizona, First Division

May 3, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. MH2021-005634 The Honorable Steven K. Holding, Judge Pro Tempore, Retired

Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant

Maricopa County Attorney's Office, Phoenix By Joseph Branco Counsel for Appellee

Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

MEMORANDUM DECISION

MORSE JUDGE

¶1 Appellant ("Patient") appeals the superior court's determination that he is "persistently or acutely disabled" ("PAD"), arguing the court erred by revoking his right to self-representation at the involuntary treatment hearing. For the following reasons, we vacate and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 On July 21, 2021, Dr. Chad Van Pelt petitioned on behalf of Valleywise Health ("Petitioner") for court-ordered treatment for Patient, alleging that Patient was PAD and was "unwilling or is unable to accept treatment voluntarily." Affidavits from Dr. Van Pelt and Dr. Sead Hadziahmetovic supported the petition. Dr. Van Pelt gave Patient a probable diagnosis of "Unspecified Psychotic Disorder." Dr. Hadziahmetovic gave Patient a probable diagnosis of "Bipolar I Disorder, [Current] Episode Manic with Psychotic Features."

¶3 At a July 29 hearing, Patient moved to represent himself. The court engaged in a colloquy with him and noted that "what I'm most concerned about, since you are the first case today, and I have a full calendar, is time allocation. So I would be limiting your side of the case, and I'd be limiting [Petitioner's] side of the case." Patient objected, and the court also entered an objection on Petitioner's behalf, "so both sides have objected for that limitation." The court nonetheless limited each side to twenty minutes. The court found "by clear and convincing evidence that the Patient knowingly, voluntarily and intelligently waives his right to counsel" and permitted him to represent himself, with appointed counsel remaining as advisory counsel ("Counsel"). The court, however, warned Patient that if the rules were not followed or if he was "just jeopardizing time or just a waste of time or cumulative-that's 703 of the rules of evidence-any type of those things, I may have to stop you and let [Counsel] take over."

¶4 Petitioner moved to admit the doctors' affidavits, noting "in the ordinary course of these proceedings . . . we proceed with a stated agreement on the record as to the admission of evidence." Patient objected for lack of notice, but the court overruled the objection. The court then noted its custom of admitting affidavits over live testimony. See A.R.S. § 36-539(B) (providing the parties may agree to statements or affidavits in lieu of live testimony). Patient refused to stipulate to the affidavits and argued that Dr. Hadziahmetovic "does not have command of the English language." The court responded that Dr. Hadziahmetovic "has been practicing in front of me for . . . 20 years, and I've heard him. He does have an accent. He does have command of the English language."

¶5 The hearing transcript reflects Patient's three attempts to follow up, which the court interrupted. The court then stated: "[r]eferring to the rules of evidence 703 . . . I am relieving you of representing yourself -I am reappointing [Counsel]."

¶6 Counsel stipulated to the admission of the affidavits and the court heard testimony from Patient, and Patient's father, mother, and brother. The court found, by clear and convincing evidence, that Patient is PAD and "shall be best treated in combined inpatient/outpatient treatment."

¶7 Patient appealed and we have jurisdiction under A.R.S. § 36- 546.01 and A.R.S. § 12-2101(A)(10).

DISCUSSION

¶8 Patient argues the superior court erred by revoking the right to self-representation. Petitioner argues that the court did not err in revoking self-representation and any error was harmless. Petitioner also asks us to overrule In re Jesse M., 217 Ariz. 74 (App. 2007), the case affording patients the right to self-representation, and alternatively, asks us to impose a 48-hour deadline on a patient's request for self-representation.

I. Standard of Review.

¶9 Although no case directly addresses the standard of review, the parties agree that we review the revocation of self-representation in an involuntary commitment proceeding for an abuse of discretion. See State v. Hidalgo, 241 Ariz. 543, 554, ¶ 44 (2017) ("A trial court's decision to revoke a defendant's self-representation is reviewed for an abuse of discretion." (quoting State v. Gomez, 231 Ariz. 219, 222, ¶ 8 (2012))). "Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001). We view the facts in the light most favorable to upholding the court's ruling. In re MH2011-000914, 229 Ariz. 312, 314, ¶ 8 (App. 2012). The statutory requirements for civil commitment "must be strictly adhered to." In re Coconino Cnty No. MH 1425, 181 Ariz. 290, 293 (1995). We review statutory interpretation questions de novo. In re MH2010-002637, 228 Ariz. 74, 78, ¶ 13 (App. 2011).

II. Waiver.

¶10 Although the transcript does not reflect an objection to the revocation of self-representation and the reappointment of Counsel, the court repeatedly cut off Patient's attempts to speak. Further, Petitioner did not raise waiver in the answering brief. See Christina G. v. Ariz. Dep' t of Econ. Sec, 227 Ariz. 231, 235, ¶ 15 n.8 (App. 2011) (declining to find waiver when not raised by appellee). "Given the liberty interests at stake in civil commitment proceedings," we will not apply waiver. See MH2010-002637, 228 Ariz. at 78, ¶ 15 n.3 (reviewing issue raised for the first time on appeal).

¶11 Petitioner asserts Jesse M. disregards the relevant statutes, jeopardizes due process rights, and that "[developments in the legislative scheme after Jesse M. also show that it conflicts with legislative intent." Petitioner cites to persuasive out-of-state authority and argues that self-representation is inappropriate in civil commitment proceedings. See, e.g., In re S.M., 403 P.3d 324, 331-32, ¶¶ 28-29, 35 (Mont. 2017) (upholding statute prohibiting self-representation in commitment cases). But Petitioner did not raise these arguments below and has not raised a constitutional challenge to self-representation. See Torres v. JAI Dining Services (Phoenix), Inc., No. 1 CA-CV 19-0544, ___Ariz.___, ___, ¶ 16 (App. Mar. 29, 2022) (noting constitutional challenges present "well-settled exceptions to the waiver doctrine"). Moreover, Petitioner did not develop a record before the superior court to show that Jessie M. has proven unworkable. See State v. Avila, 127 Ariz. 21, 23 (1980) (overturning precedent "condemned as unworkable"); Castillo v. Indus. Comm'n, 21 Ariz.App. 465, 471 (1974) (holding that we may reverse precedent if "conditions have changed so as to render these prior decisions inapplicable"). Therefore, in our discretion, we decline to revisit our prior opinion for the first time on appeal. See State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 132, ¶¶ 16-18 (2020) (noting importance of stare decisis in matters of statutory interpretation).

¶12 For the same reasons, we also decline to address Petitioner's proposed 48-hour deadline for self-representation requests. Even assuming there are sound reasons to impose such a deadline, we decline to address the issue because Petitioner did not object to the timeliness of Patient's request before the superior court. See In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9 (App. 2010) (noting the rule against considering new arguments on appeal "protects the party against whom the new argument is asserted from surprise"); cf. also Coleman v. Johnsen, 235 Ariz. 195, 196, 198, ¶¶ 2-5, 16-18 (2014) (creating deadline for self-representation on appeal after issue was litigated at the Court of Appeals).

III. Revocation of Self-Representation.

¶13 Patient argues the superior court erred when it revoked self-representation and reappointed Counsel. Because the Patient's behavior was insufficient to justify revoking his self-representation, we agree.

¶14 "Although a civil commitment proceeding cannot be equated to a criminal prosecution, the standards in criminal cases have been examined to determine when waiver [of counsel] can occur." Jesse M., 217 Ariz. at 78, ¶ 19 (citations and internal quotation marks omitted); see Honor v. Yamuchi, 820 S.W.2d 267, 269 (Ark. 1991) (holding due process requires representation by counsel or intelligent waiver of right "there being no material distinction between procedures aimed at the curtailment of physical liberty whether criminal or civil"); see also In re Pima Cnty. Mental Health No. MH-2116-1, 157 Ariz. 314, 315 (App. 1988) (requiring evidentiary hearing on claim of ineffective assistance of counsel despite commitment proceeding's civil nature). The parties cite no civil-commitment cases to the contrary, and we find criminal cases examining the revocation of the right to self-representation persuasive.

¶15 A litigant that is "incapable of abiding by the most basic rules of the court is not entitled to defend himself." Gomez, 231 Ariz. at 223, ¶ 15 (quoting Deck v. Missouri, 544 U.S. 622, 656 (2005) (Thomas, J., dissenting)). "[A] self-represented defendant must not only respect the dignity of the courtroom but also 'comply with relevant rules of procedural and...