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 761,695 Ariz. Adv. Rep. 30,235 Ariz. 578
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

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.

Background

¶ 2 In September 2010, the Pinal County Superior Court ordered T.J. to undergo combined inpatient and outpatient psychiatric treatment after finding she was a danger to herself and persistently or acutely disabled as a result of a mental disorder. The court appointed the PCPD to represent T.J. in the proceedings for court-ordered treatment, held pursuant to A.R.S. title 36, chapter 5, article 5. As a consequence of the court's findings and treatment order, T.J. is prohibited from possessing a deadly weapon or prohibited weapon, including a firearm, unless her “right to possess a firearm has ... been restored pursuant to

[A.R.S.] § 13–925.” A.R.S. §§ 13–3101(A)(1),(7), 13–3102(A)(4).

¶ 3 T.J. was discharged from treatment by operation of law in September 2011. See A.R.S. § 36–542(A). In November 2011, the PCPD filed a petition to restore T.J.'s right to possess firearms pursuant to § 13–925, using the original mental health case number. That petition was dismissed without prejudice for unstated reasons; the following month the PCPD asked the court to appoint an independent evaluator to provide “appropriate information for judicial review of [T.J.'s] request to restore her right to possess firearms.”

¶ 4 In July 2012, the respondent judge found T.J. indigent and appointed the PCPD to represent her, “pursuant to Title 36 and both the Arizona and United States Constitution[s] affording an indigent Patient counsel in this proceeding.” In September 2012, the respondent also approved T.J.'s renewed request for an expert's evaluation at public expense.

¶ 5 In April 2013, the PCPD filed a new petition for restoration of T.J.'s right to possess a firearm; in a reply, the state objected to the PCPD's representation of T.J. and argued the petition “should have been filed as a new civil matter by [T.J.] pro per or her private attorney, not by the [PCPD].” After considering arguments on the issue, the respondent judge stayed the § 13–925 proceedings so the state could challenge the PCPD's appointment in a petition for special action. The respondent judge also appointed private counsel to represent T.J. “in any special action proceedings.” The Board has substituted as petitioner in this court and has adopted positions the state had asserted before the substitution.1

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 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 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...

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