Pinal Cnty. Bd. of Supervisors v. Georgini

Decision Date18 September 2014
Docket NumberNo. 2 CA–SA 2014–0010.,2 CA–SA 2014–0010.
Citation334 P.3d 761,235 Ariz. 578,695 Ariz. Adv. Rep. 30
PartiesThe PINAL COUNTY BOARD OF SUPERVISORS, Petitioner, v. Hon. Joseph R. GEORGINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent, and T.J., Real Party in Interest.
CourtArizona Court of Appeals

235 Ariz. 578
334 P.3d 761
695 Ariz.
Adv. Rep. 30

The PINAL COUNTY BOARD OF SUPERVISORS, Petitioner,
v.
Hon. Joseph R. GEORGINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, Respondent,
and
T.J., Real Party in Interest.

No. 2 CA–SA 2014–0010.

Court of Appeals of Arizona,
Division 2.

Sept. 18, 2014.



Relief granted.


[334 P.3d 763]


M. Lando Voyles, Pinal County Attorney By Geraldine Roll and Rosemary Gordon–Pánuco, Deputy County Attorneys, Florence, Counsel for Petitioner.

Hernandez Scherb & Hanawalt, P.C., Florence By Camille Hernandez and Paula M. Cook, Interim Pinal County Public Defender By David T. Wilkison, Deputy Public Defender, Florence, Counsel for Real Party in Interest.


Presiding Judge MILLER authored the opinion of this Court, in which Chief Judge ECKERSTROM and Judge VÁSQUEZ concurred. MILLER, Presiding Judge.
OPINION

¶ 1 In this special action, the Pinal County Board of Supervisors challenges the respondent judge's appointment of the Pinal County Public Defender's Office (the PCPD), or any counsel at public expense, to represent real party in interest T.J. in a proceeding pursuant to A.R.S. § 13–925, to restore her right to possess firearms. We accept jurisdiction because the Board has no “equally plain, speedy, and adequate remedy by appeal,” Ariz. R.P. Spec. Actions 1(a), and because the issue is purely legal, of statewide importance, and not previously addressed by Arizona courts. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App.2002). For the following reasons, we grant relief.


Discussion

¶ 6 In Arizona, a person faces criminal liability “by knowingly ... [p]ossessing a deadly weapon or prohibited weapon if such person is a prohibited possessor.” A.R.S. § 13–3102(A)(4). A prohibited possessor includes “any person ... [w]ho has been found to constitute a danger to self or to others or to be persistently or acutely disabled ... pursuant to court order under [A.R.S.] § 36–540, and whose right to possess a firearm has not been restored pursuant to § 13–925.” 2 § 13–3101(A)(7)(a). Although this prohibition operates automatically, that is, there is no statutory requirement that the mental health treatment order address firearms possession, T.J.'s treatment order advised her of the prohibition.

¶ 7 Section 13–925 allows a person to petition the court that ordered her treatment for an order restoring her right to possess a firearm. § 13–925(A). She is entitled to a hearing, and must “present psychological or psychiatric evidence in support of the petition.” § 13–925(C). She is required to serve the petition on the attorney for the state who appeared in the underlying case, and “[t]he state shall provide the court with [her] criminal history records, if any.” § 13–925(B), (C). At the hearing, “[t]he court shall receive evidence on and consider the following before granting or denying the petition”:

1. The circumstances that resulted in the person being a prohibited possessor as defined in § 13–3101[ (A)(7)(a) ]....

2. The person's record, including the person's mental health record and criminal history record, if any.

3. The person's reputation based on character witness statements, testimony or other character evidence.

4. Whether the person is a danger to self or others, is persistently, acutely or gravely disabled or whether the circumstances that led to the original order

[334 P.3d 765]

adjudication or finding remain in effect.

5. Any change in the person's condition or circumstances that is relevant to the relief sought.

6. Any other evidence deemed admissible by the court.

§ 13–925(C).

¶ 8 To obtain relief, a petitioner must prove by clear and convincing evidence that she “is not likely to act in a manner that is dangerous to public safety” and that “[g]ranting the requested relief is not contrary to the public interest.” § 13–925(D). The court is required to issue findings of fact and conclusions of law supporting its ruling, § 13–925(E), and an order granting or denying the petition may be appealed, A.R.S. § 12–2101(A)(4)(d). If the petition is granted, “the original [mental health] order, finding or adjudication is deemed not to have occurred” for the purpose of applying the prohibited possessor statute. §§ 13–925(F); 13–3101(A)(7)(a).

¶ 9 In its petition for special action relief, the Board argues there is no statutory authority “for the Public Defender to provide representation to indigent persons seeking restoration of their firearm rights” and “there are no constitutional, due process or other interests served by appointing counsel at taxpayers' expense for indigent persons seeking restoration of their firearm rights.” 3

A. The Absence of Statutory Authority

¶ 10 The Board points out that § 13–925 contains no express provision for the appointment of counsel. It maintains statutes that expressly authorize such appointments “provide guidance on when the legislature intended that an indigent is entitled to counsel at taxpayer expense.” The Board also relies on Trebesch v. Superior Court and other cases for the proposition that “[A.R.S. § ] 11–584 is clear and unambiguous and prohibits public defenders from defending persons outside the scope of the statute.” 175 Ariz. 284, 288, 855 P.2d 798, 802 (App.1993).

¶ 11 T.J. maintains § 11–584(A)(3) authorizes the PCPD's appointment. This statute permits a public defender to represent indigent parties who are “entitled to counsel as a matter of law” in “[m]ental disorder hearings only if appointed by the court under title 36, chapter 5.” But chapter 5 in title 36 governs mental health services and authorizes the appointment of counsel only when (1) a court grants a petition for a court-ordered, custodial evaluation of a proposed patient upon finding reasonable cause to believe that he or she “is, as a result of a mental disorder, a danger to self or others, [and] has a persistent or acute disability or a grave disability,” 4 A.R.S. § 36–529(A), (B); (2) a patient is detained pursuant to a petition for court-ordered treatment, A.R.S. § 36–535(A); (3) a patient is served with a petition for court-ordered treatment, A.R.S. § 36–536(A); or (4) a patient receiving treatment under a court order requests release, A.R.S. § 36–546(F). The respondent judge did not appoint the PCPD under any circumstances authorized under title 36, chapter 5.

¶ 12 Moreover, we recognize that, as T.J. suggests, a hearing pursuant to § 13–925 requires consideration of the circumstances that led to court-ordered mental health treatment and whether those circumstances “remain in effect,” as well as evidence regarding “[w]hether the person is a danger to self or others, [or] is persistently, acutely or gravely disabled.” § 13–925(C)(1), (4). But in contrast to a “mental disorder” hearing pertaining to the provision of “Mental Health Services” under title 36, § 13–925 does not require a determination of whether a person

[334 P.3d 766]

suffers from a mental disorder; restoration of T.J.'s firearm rights instead depends on whether she “is not likely to act in a manner that is dangerous to public safety” and whether eliminating her firearms restriction “is not contrary to the public interest.” Compare § 13–925(D) with § 36–540(A). Accordingly, we decline to construe a § 13–925 proceeding as a “mental disorder hearing” encompassed by the PCPD's previous, completed appointment pursuant to § 36–536.

¶ 13 We nonetheless are unable to resolve, based solely on statutory analysis, whether the respondent judge abused his discretion in appointing the PCPD to represent T.J. Although Trebesch and other cases cited by the Board correctly state the law, § 11–584(A)(10) since has been amended to authorize the PCPD to represent an indigent party “in any other proceeding or circumstance in which a party is entitled to counsel as a matter of law” if appointed by the court and approved by the county board of supervisors. See 2010 Ariz. Sess. Laws, ch. 195, § 1. Because we assume that § 11–584(A)(10) would encompass the PCPD's representation, with Board approval, of those persons entitled to counsel as a matter of constitutional due process, we must address whether due process requires the appointment of counsel for an indigent party in a § 13–925 proceeding.

B. Due Process

¶ 14 “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment,” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), but the particular process due “varies in relation to the interests at stake and the nature of the governmental proceedings,” Lassiter v. Dep't of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 36–37, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). “Liberty interests protected by the Due Process Clause may arise from the clause itself or state laws.” Wigglesworth v. Mauldin, 195 Ariz. 432, 435, 990 P.2d 26, 29 (App.1999).

The Nature of T.J.'s Interest

¶ 15 Arguing that due process does not require that counsel be appointed to represent T.J. at public expense, the Board relies on the “presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty.” Lassiter, 452 U.S. at 31, 101 S.Ct. 2153. The Board maintains “[t]he distinction between infringement of a fundamental right to personal liberty and a mere restoration of an interest in property, as is the case here, is markedly clear.”

¶ 16 But the presumption identified in Lassiter is not dispositive. In addressing whether due process requires the appointment of counsel for an indigent parent in proceedings to terminate parental rights, the Court in Lassiter approved the following case-by-case analysis to be conducted, “in the first instance” by the trial court: The court first “must balance” the three elements propounded in Mathews—“the private interests at...

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2 cases
  • Pinal Cnty. Bd. of Supervisors v. Georgini
    • United States
    • Court of Appeals of Arizona
    • September 18, 2014
    ...235 Ariz. 578334 P.3d 761695 Ariz. Adv. Rep. 30The PINAL COUNTY BOARD OF SUPERVISORS, Petitionerv.Hon. Joseph R. GEORGINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, RespondentandT.J., Real Party in Interest.No. 2 CA–SA 2014–0010.Court of Appeals of......
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    • United States
    • Court of Appeals of Arizona
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