In the Matter of Leon G: State of AZ 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

Annotate this Case

Download PDF

FILED SUPREME COURT OF RR:zoNR DEC 16 ZOO2 Sri Banc NOELK.OESSAINT CLERK SUPREMECOURT Arizona Supreme No. CV 01 0062 PR ) In re the Matter of LEON G. Court of Appeals Division One No. 1 CA NH 00 0004 Yuma County Superior Court No. SC98M00050 CONSOLIDATED WITH ) STATE OF ARIZONA, Arizona Supreme Court No. CV 01 0063 SA 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, ) ) ) ) Court of Appeals Division One No. 1 CA SA 01 0027 Maricopa County Superior Court No. CV-MH-99-1189 Respondents, OPINION ERIC WALKER, Real Party in Interest. Appeal from the Superior Court of Yuma County No. SC98M00050 The Honorable Kirby D. Kongable, Judge AFF1 RME D Opinion of the Court of Appeals Division One 199 Ariz. 375, 18 P.3d 169 (App. 2001) VACATED Kristi A. Riggins, P.C. by Kristi A. Riggins Attorney for Leon G. Phoenix Janet Napolitano, Arizona Attorney General Phoen:y by Randall N. Howe, Chief Counsel, Criminal Appeals Section and Consuelo N. Ohanesian, Assistant Attorney General Attorneys for State of Arizona Quarles & Brady Streich Lang, LLP Phoenix by Michael Owen Miller Tucson Attorneys for Amici Curiae Southern Arizona Center Aaa:nsc Sexual Assault, Center Against Sexual Abuse, and Arizona Voice :Tcr Victims, Inc. Jamie McAlister Law Offices, LLC by Jamie McAlister Attorney for Amicus Curiae Jamie McAlister Phoenix - Special Action from the Superior Court of Maricopa County No. CV MH-99-1189 The Honorable Alan S. Kamin, Judge REVERSED and REMANDED Special Action from Order of the Court of Appeals Division One JURISDICTION ACCEPTED, RELIEF GRANTED Janet Napolitano, Arizona Attorney General Phoenix by Randall N. Howe, Chief Counsel, Criminal Appeals Section and Consuelo N. Ohanesian, Assistant Attorney General Attorneys for State of Arizona Daphne Budge Attorney for Walker Phoenix McGregor, Vice Chief Justice ¶1 These Sexually Violent (A.R.S.) consolidated Persons actions (SVP) act, sections 36 3701 to 36 3717 consider whether Arizona (Supp. Revised 2002), Arizona s Statutes comports with the substantive due process principles the United States Supreme 2 Ccurt outlined in Kansas v. 20~2 (l99~~,and Kansas v. 2002 . Hendricks, Crane, 534 52 U.S. U.S. 146, 4C, 111 S. Ct. ~ We hold that tne Arizona SVP act imposes eroner crocecures and evidentiary standards and sufficiently narrows persons 1~ S. subject to commitment to assure the class compliance of wcth 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 Arizona State the trial judge ordered his commitment to Hospital, pursuant to A.R.S. section 36- 3707.B.l.~ The Court of Appeals vacated the order of commitment, Leon s case presents two jurisdictional questions for this court. First, we must determine whether Leon waived his substantive due process challenge by not raising it on appeal. When Leon initially appealed from his commitment order, his appointed appellate counsel filed an Anders brief that raised no issues on appeal. See Anders v. California, 386 U.S. 738, 744, 87 5. Ct. 1396, 1400 (1967) The right to a 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., 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 act are civil in nature. Martin v. Reinstein, 195 Ariz. 293, 307, ¶~I 39, 41, 987 P.2d 779, 793 (App. 1999) Therefore, the Anders procedure does not apply to persons committed under the SVP act. Next, we must consider whether Leon s release from civil confinement renders his challenge to the SVP act moot. On September 12, 2002, the Yuma County Superior Court granted Leon s petition for permanent release from the Arizona State Hospital pursuant to A.R.S. § 36 3714. Because Leon did not properly preserve his substantive due process challenge and is no longer confined, it appears that the question is both waived and . . . 3 concluding that the Arizona SVP statute violated his substantive due process rights under the Fourteenth Amendment of the Unicef States Constitution. P.3d 169, 175 In re Leon G., (App. 2001). 199 Ariz. 375, 381, We granted the State s petition review pursuant to Arizona Constitution Article VI, Arizona 5 25, Rule of Civil Appellate Procedure 23, Section and A.R.S. 18 for 5.3, section 12 120.24. After the Court of Appeals issued its decision in On re Leon G., Walker, who also had been adjudicated an SVP and committed to the State Hospital, moved for a release on the basis decision. The trial court granted his motion. the Court of Appeals to issue a blanket granted pursuant to the Court of Appeals of that The State then moved stay Leon G. of any releases 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., vacated by Glick v. Arizona, 200 Ariz. U.S. , 298, 26 P.3d 481 122 S. Ct. 1535 (2001) (2002) , we moot. Generally, this court will not examine waived or moot questions. An exception exists, however, for issues that are of great public importance or likely to reoccur. Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984); Corbin v. Rodgers, 53 Ariz. 35, 39, 85 P.2d 59, 61 (1938) This action meets those exceptional criteria. . 4 held that (1997) Kansas did , requirement Ariz. not Hendricks, impose for civil at 301, satisfies v. 521 U.S. volitional commitment burden to show 117 impairment statutes. ¶ 10, 26 P.3d at 484. its 346, S. as a of 2071 separate In re Leon 0., We explained mat lack Cc. control if the state the state establishes beyond a reasonable doubt not only that a person dangerous, 200 is but also that a mental illness or disorder caused the dangerousness, making it highly probable engage in future acts of sexual violence. that the person- will Id. at 302, 306, ¶~T 12, 13, and 32, 26 P.3d at 485, 489. ¶4 Subsequent to our decision, the United States Court revisited Hendricks in Kansas v. Crane, 534 U.S. 407, Ct. 867 G. (2002) opinion . and , 122 S. After deciding Crane, the Court vacated our Leon remanded the case to this consideration in light of Kansas v. Crane. U.S. Supreme 122 5. Ct. 1535 court for further Glick v. Arizona, (2002). II. ¶5 In Kansas v. Hendricks, considered the constitutionality Predator Act sexually the United States Supreme Court (Kansas act) violent that predators.2 of the Kansas governs the Recognizing Sexually Violent civil that an commitment of individual s Kansas permits the state to civilly commit an individual if a jury determines beyond a reasonable doubt that the person is a sexually violent predator. Ken. Stat. Ann. § 59-29a07(a) (Supp. 2001) The statute defines a sexually violent predator as any . 5 liberty interest [s]tates have in is not absolute, civil behavior and who thereby detainment of people who are unable pose safety. Hendricks, ¶6 Hendricks describes may 521 U.S. involuntarily confinement [must] explained that certain narrow circumstances provided for the forcible states Court the take[] a danger at 2079. circumstances individuals. in which First, the pursuant to proper procedures Id. at 357, evidentiary standards. Ct. 117 5. the narrow place their to the public health and at 356-57, confine to control 117 S. Ct. at 2080. and Next, the state must restrict commitment to a limited subclass of dangerous persons. finding Id. of sufficient In addition, dangerousness, ground commitment. Id. and of central importance here, standing upon which at 358, to 117 S. alone, justify Ct. at is ordinarily indefinite 2080. [a] not a involuntary Instead, civil commitment statutes must couple[] proof of dangerousness with the proof of some additional mental abnormality. factors limit factor, Id. such as a civil illness or These added statutory requirements, such as mental illness or mental involuntary mental confinement to abnormality, those who serve to suffer from a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence. Id. § 59-29a02(a). The statute defines mental abnormality as a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others. Id. § 59 29a02(b). The statute does not define personality disorder. 6 volitional impairment control. ¶7 rendering them dangerous beyond their Id. The United States Supreme Court revisited Hendricks and the Kansas act in Kansas v. Crane, addressmnc macnly :ne recuis::e 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 Crane, 7 P.3d 285, 290, court s 294 order (Kan. Crane.2 committing 2000) . I-n re 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. 122 5. Ct. at 870. Crane, 534 U.S. at , This requisite lack of control, as well as the nature of the psychiatric diagnosis, and the severity of the mental abnormality sexual itself, offender must be sufficient whose serious to distinguish mental illness, the dangerous abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. ¶8 Id. Accordingly, to comport with substantive due process as articulated in Hendricks and Crane, Arizona s SVP act must impose proper procedures narrow the class 2 Central and evidentiary of persons standards. subject to the court s Additionally, to commitment decision was the it must to only those fact that who Crane suffered from a personality disorder and the Kansas act neglects to define personality disorder. In re Crane, 7 P.3d at 290. 7 have serious difficulty in controlling their benauicr cc ensure the acL suffociently alstinguisnes tr~ose subreot to cov:~ commitment from the dangerous but typical recidivist. ¶9 We possible, review construe the it so as 45 to Ariz. a statute uphold 143, its 150-51, be ncvc and, if constitutionality. Srewart v. (1935) We will not overturn an act of the legislature unless we . Robertson, validity of 40 P.2d 979, 983 are satisfied beyond a reasonable doubt that the statute fails to comply with the Constitution. 273, 255 P.2d 203, 204 State v. Gastelum, 75 Ariz. 271, (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 and was offense or was charged determined incompetent with a to sexually violent 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 Arizona s legislature enacted the Sexually Violent Persons statute as the Sexually Violent Predators act in 1995, and placed it in Title 13 of the codified statutes, along with the criminal laws of the state. In 1998, the legislature retitled the act Sexually Violent Persons and moved it to Title 36, which includes statutory provisions involving public health and safety. A.R.S. §5 36-3701 to 36-3717. 8 acts to such a as to render the person a health and safety of others. A.R.S. § 36-3701.5. ¶11 An degree agency with jurisdiction over a dancer person to whom it believes to be an SVP must notify the attorney General or county attorney of the person s expected release from custody thirty and one hundred eighty days before release. 3702. The agency must provide the attorney between A.R.S. general or § 36county 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. ¶12 A.R.S. § 36 3704. 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. probable cause exists, detained in licensed a superintendent evaluation ¶13 the judge facility of the Arizona of the person Id. If the judge determines that must under State order the Hospital at the county s the person supervision and must expense. to of order be the an Id. Within one hundred twenty days of the petition, the court conducts a trial to determine if the person named in the petition 9 an SVP.~ A.R.S, is jury. Id. The § 36 3706. person Either named in party the may recue s:a:rial petition has a right or 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 professional, appointed by the court if the person is indigent. ¶14 doubt § 36-3703. The state has the burden of proving beyond a reasonable that the person meets A.R.S. § 36 3707. doubt, A.R.S. that [c]ommit If the trier of fact finds, beyond a reasonable the person the the statutory definition of anSVP. SVP to is the an SVP, custody then of the the court must department of either health services for placement in a licensed facility or [o]rder that the [SVP] be released appropriate. receive care, Id. to If a the less restrictive SVP is committed, supervision or treatment alternative he or she if shall until the person s mental disorder has so changed that the person would not be a threat to public safety if the person was conditionally released to a less restrictive alternative or was unconditionally discharged. Id. The SVP must be examined annually to determine whether commitment remains appropriate. A.R.S. § 36 3708. Either the state or the SVP may petition the court for discharge or conditional release to If the person named in the complaint was found incompetent to stand trial on the sexual offense charges, the court must determine, beyond a reasonable doubt, that the person committed the charged offense before turning to the question whether the person should be committed under the SVP act. A.R.S. § 36-3707.D. 10 a less restrictive setting with appropriate supervision. A.R.S. §~ 36-3709, 36-3714. in a hearing, at which the SVP may be present treatment and Either petition results and participate, and the state bears the burden of proving that conditional release or discharge would be inappropriate. ¶15 We procedures conclude and Constitution. 1254, 1268 requires assistance that Arizona s SVP evidentiary standards in See Vitek v. Jones, (1980) (Powell, the to state J., to 99 5. Ct. an inmate whom the 1804, 1813 act imposes compliance 445 U.S. 480, 500, concurring) (stating provide transfer to a mental hospital); 433, Id. proper with the 100 S_ Ct. due process qualified and state to involuntarily seeks Addington v. independent Texas, 441 U.S. 418, (1979) (holding states must prove by at least clear and convincing evidence that an individual should be involuntarily committed); O Connor v. Donaldson, 422 U.S. 563, 574 75, 95 5. Ct. 2486, 2493 (1975) (explaining that even if an initial confinement was founded upon a constitutionally adequate basis, a state cannot continue to confine that individual basis no longer exist[s] ); Jackson v. Indiana, 92 5. Ct. 1845, 1858 (1972) after that 406 U.S. 715, 738, (explaining due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed ) B. ¶16 Leon and Walker argue that Arizona s SVP act lacks any 11 requirement that causes or him beriavior. the her state to Focusing Walker argue have an alecec serious on the absence control in Arizona s and crcve definitions we must act in its original form dcfficultv in concrollcnc of words such as capacrty or of SVP and mental d:scrder, now unconstitutional in light of Crane. SVP SUP a centol declare Arizona s SOP act They concede that the Aricona might have satisfied standard but argue the current version falls short the Crane of compivinc with Crane. ¶17 When the legislature originally enacted the SVP act, it used the term mental abnormality rather than mental disorder. The definition of mental abnormality included the clause a congenital or acquired condition capacity of a person. that affects 1995 Ariz. the emotional Sess. Laws ch. or volitional 257 § 7. The legislature, however, has since amended the act, and the definition of mental disorder no longer includes this clause. argue Leon and Walker, indicates that the This deletion, legislature did not intend serious difficulty in controlling behavior to be one of the elements of an involuntary commitment, and, therefore, the act As originally enacted, a mental abnormality meant a congenital or acquired condition that affects the emotional or volitional capacity of a person and that predisposes the person to commit criminal sexual acts to such a degree as to render the person a menace to the health and safety of others. 1995 Ariz. Sess. Laws ch. 257 § 7. This definition is virtually identical to the Kansas definition of mental abnormality that the United States Supreme Court upheld in Hendricks. See Kan. Stat. Ann. § 5929a02 (b). 12 does not comolv with the reauirements articulated in Crane. The State responds that Crane does not demand that an 500 statute use particular words, so long as the statute narrows commitment to those who lack control over their behavior. ¶18 Leon and Walker correctly note that Arizona s SUP act does not include an express statutory provision requiring me state to prove an individual has serious difficulty in contro~.ring has or her behavior. We do not agree, however, that due process, under Hendricks and Crane, mandates explicit references to words such as control or capacity in civil commitment statutes for several reasons. ¶19 First, Leon and Walker s interpretation of Crane seems to contradict the Court s commitment statute warning that the constitutionality does not depend upon the particular of a language that a legislature chooses to narrow the class of persons eligible for commitment. ( [W]e have Hendricks, never 521 U.S. required state at 359, 117 S. legislatures Ct. to at 2081 adopt any particular nomenclature in drafting civil commitment statutes. ). In Crane, the Court specifically declined the parties to impose a bright-line rule[] and reiterated that invitation [s]tates retain considerable leeway in defining the mental abnormalities and personality disorders commitment. Crane, Court s reluctance that 534 to make U.S. at require 13 an individual eligible for 122 at The particular 5. Ct. statutory 871. language reflects its concern that courts should pay part:cuar cerer~nrC mc reasonaoe legislatave mdgments in the area of mental nealto. regulations. Jones a. Un::ec S:a:es, 463 U.S. 354, 365, ~ Cm. 3043, Cm. at 3050 1812 \0983 ; see asc Addinr:on, explaining states must n.l, 040 U.S. cc free mc oeveloc variety of solutions to problems and not be forced into a common, uniform mold and [a]s the substantive standards for cival commitment may vary from state to state, procedures must be alloweo to vary so long as they meet the constitutional minimum fl ¶20 More importantly, statute, which cehavior requirement. imposes no abnormality. express link at 2080. difficulty the . . . the in Kansas capacity Court of a Hendricks, finding of on at 358, the future mental abnormality 521 U.S. on in defining concentrated a SUP controlling the Court dic not focus between dangerousness and a finding personality disorder. upheld use of the word Rather statutorily-required Court In Hendricks, the Kansas legislature s mental the 117 S. or Ct. The Kansas act s coupling of proof of dangerousness with the proof . . . of a mental abnormality, rather than the act s use of the term capacity, serve[d] to limit involuntary civil confinement to those who suffer from a volitional impairment. Id. The Crane opinion further explained that the Court did not give to the phrase meaning. lack of control 534 U.S. at , a particularly 122 S. Ct. at 870. 14 narrow or technical ¶21 We conclude that Crane s statement that a state crove sercous dafficult~ ~o controllinc eerie ~or aces riOt must ~ec~re express statutory language, but rather reiterates the recuarement that an SVP statute substantially and adequately narrows mne class of individuals subject to involuntary civil commitment. See Id. Crane does not alter the Court s analysis in Hendricks that focused on the link between proof abnormality require in upholding the state of dangerousness and the Kansas Act. to establish that a proof Hendricks defendant of mental and crane suffers from a mental incapacity that causes difficulty in controlling behavior to ensure that subject to the state distinguishes involuntary Hendricks and Crane, commitment dangerous from sexual typical offenders recidivists. however, afford legislatures the autonomy to determine how the state must prove the requisite lack of control. III. ¶22 The sufficiently question, narrows commitment as SVPs. then, the is class whether Arizona s of persons SVP subject to statute civil We conclude the statute meets that standard. Although the statute does not mimic Crane s serious difficulty in controlling behavior language, the statute necessarily requires the state to prove that an alleged SVP s dangerousness results from a mental impairment rather than from voluntary behavior. A. ¶23 To civilly commit an individual under the SVP act, 15 the state must prove, beyond a reasonable doubt, that the ind:-cioua_ an soP. A.R.S. indivi~cal insane violent § 36-3 C~.A. The statute defines who ~h]as ever been of a sexually offense violent convictec offense A.R.S. § 36-3701.7. of or found or was chargec and was determined an SUP as incompetent an cu:.mu cam wath a sexua~r to stanc trial. In addition, the person must exhicat a mental disorder that makes the person likely to engage in acts of sexual violence. ¶24 Id. (emphasis added).~ -- Although the SVP act applies only to those persons whose mental disorder makes them likely to engage in future sexual violence, the statute does not define likely. meaning attached to the term affects persons subject to civil the scope confinement under of the acts of Because the the class act, we of cannot compare Arizona s statute with the standard set forth in Hendricks and Crane without first defining this central term. ¶25 Likely is not a legal term with a fixed meaning. The dictionary defines likely as meaning having a high probability of occurring or being true; Collegiate Dictionary 674 very probable. (10th ed. 1999) . Merriam-Webster s Courts have attached various meanings to the term, depending to a large extent upon the context within which it is used. E.g., United States v. Powell, Mental disorder means a paraphilia, personality dasorder or conduct disorder or any combination of [those] that predasposes 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. § 363701.5. 16 * 761 F.2d 1227, not; 1233 (8th Cir. 1985) more probable than not); (likely means more likely than In re Foster, 426 N.W.2d 374, 377 (Iowa 1988) (likely means probable or reasonably to be expected ) Holden v. Missouri P. Co., 84 S.W. 133, 136 (Mo. Ct. App. (likely means reasonably certain to accrue in the future ) Arizona Court referring to physical of Appeals has circumstances injury, A.R.S. interpreted likely to section a State v. 346, 1995); 350, 890 Reinstein, (holding P.2d 641, 195 Ariz. 293, the possibility ¶26 SVP those (App. 314 ¶ 68, statute of future As 645 statute death serious a as Johnson, see meaning 181 Ariz. also Martin 987 P.2d 779, requires or (2001), probable as compared with possible. The . criminal produce 13 3623 1904) 800 probability, (App. not a v. 1999) mere dangerousness) decisions demonstrate, defining meaning probable raises no due process concerns. likely as The question for us, however, is not which definition of likely would satisfy constitutional requirements, but which definition the legislature intended to attach to the term. ¶27 In this language, we conclude likely reflects instance, its higher than probable. 510, 821 P.2d 166, 171 that after the decision legislature s to Dietz v. (1991) a statutory term is not clear, considering require Gen. Elec. a other use statutory of standard Co., the term somewhat 169 Ariz. 505, (explaining that when the meaning of we look to the overall 17 language of the statute for assistance) The legislature provaced cuicance . the meanang of likei.y an section 10 of the SVP act, wriact sets ~um the 739: legislative Arc:. acoresses act. findings Sess. Laws the civil that cc. let 2: tm the passaca cf the ~. commatment procedure coopted a: part ~f one Th that subsection, the legislature noted that, for a small but extremely dangerous group of sexually violent predators, tne likelihood of the sex offenders engaging predatory sexual violence is high. Id. in repeat acts (emphasis addea~ of That . language bears a striking similarity to the common ana dictionary definitions of likely as being highly probable. term as meaning highly probable also Construing the gives effect to the legislative decision to distinguish the standard in the SVP act from that in the general commitment statute, which requires showing behavior serious that can physical reasonably harm. be A.R.S. legislature had intended the same statutory same schemes, terms. indicates the expected § . 36-501.4 standard to . . mc (1993 apply result in If . in the the two we think the legislature would have used the Use of likely legislature rather than intended to reasonably expected adopt a more stringent standard in the SVP act. Other jurisdictions also have interpreted likely in sexually dangerous persons civil commitment statutes as meaning highly probable. See, e.g., In re Linehan, 594 N.W.2d 867, 878 (Minn. 1999) (present disorder makes it highly likely that the defendant will engage in future harmful sexual acts, ; Westerheide v. Florida, 767 So. 2d 637, 652-53 (Fla. Dist. Ct. App. 18 B. The Arizona ¶28 SUP statute thus permats a person as an SVP only if the state proves, doubt, that (1) A.R.S. section civil ccmm:mmecm of beyond a reasonarle the person has a mental disorder, 36-3701, that predisposes the as cefaned person mc an commit sexual acts to such a degree that he or she is dangerous to others and (2) the cerson will mental engage disorder makes in acts of it highly probable sexual violence. The that mne dicmianary defines make as meaning to cause to act in a certain way or to compel. 1999). Merriam-Webster s Collegiate Dictionary 702 (10th ad. Recently, the Arizona Court of Appeals interpreted makes, as used in the SVP act, or tend[ing] to overpower the person s ability to control his or her behavior. In re Wilber W., We agree language. with Ariz. and adopt as meaning ¶ 18, this As thus construed, impair[ing] 53 P.3d 1145, interpretation 1149 of (App. the 2002). statutory the statute requires that the state prove that a person has serious difficulty in controlling his or her dangerous behavior. That is, if the state establishes the required nexus between a person s mental disorder and the person s dangerousness and proves that the disorder, rather than a voluntary decision, makes the person act in a certain manner, the state has shown that the person has serious difficulty in controlling his 2000) ( likely means highly probable or probable and having a better chance of existing or occurring than not ) The reasoning of those courts, interpreting state statutes similar to ours, supports our conclusion. . 19 or her behavior. ¶29 Accordingly, the Arizona SVP act requires mucn core than a finding of dangerousness. The statute permits confinement only if the state demonstrates the cause and effect relamicrishar oetreen tie a_~ecea S~ P s me~ta.~c_soccer a~c a ~_c~ anctava~ualwall commat tuture acts of vaoaen ¢ce. Tvpjcaa rccacavasms who choose to commit acts of sexual violence do not fall witnan one purview of Arizona s SOP act. The state may commit only those persons who lack control because a mental disorder, not a voluntary choice, makes them likely to commit sexually violent acts. although the statute does not expressly difficulty in controlling behavior, embody the Arizona s whose functional SVP act serious equivalent distinguishes mental . . to serious the statutory language does of the that phrase. dangerous disorder . refer Hence, Therefore, sexual subjects him offender to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case in compliance with Hendricks and Crane. Crane, ¶30 534 U.S. at Other 122 5. Ct. at 870. jurisdictions confronted with challenges to SVP statutes after Crane have concluded that a jury necessarily finds a defendant individual s Luckabaugh, mental lacks the requisite control when the state mental disorder 568 S.E.2d 338, abnormality determination. ); prong and 349 of dangerousness. (S.C. 2002) the In cc Laxton, 20 Act is links the See In re ( Inherent within the a 647 N.W.2d 784, lack 793 of control (Wis. 2002) conc.Ladinc cisorcer procf anc of mne nexus cangerousness between the :nc_v_o~a.~_ necessarilr ccc ampl:o_m_r proof mhat the cerson s mental disorder recuires serious c:ff:cu_mr for such carson in controllinq his or ncr benavaor reasoning of these courts further supports our inmercremamion o: the ArIzona SVP act. C. ¶31 Some jurisdictions, after holding that the state., by establishing a nexus between the individual s mental disorder and danqerousness, necessarily proves that an alleged SUP has cafficulty in controlling his behavior, have declined to require a specific instruction including the controlling behavior language. Crane See serious Illinois difficulty v. Hancock, in 771 N.E.2d 459, 463-66 (Ill. App. Ct. 2002); Laxton, 647 N.W.2d at 795. But see In re Thomas, 74 S.W.3d 789, 792 (Mo. 2002) these courts that due process requirements, We agree with . as set forth in Hendricks and Crane, do not mandate a specific jury instruction. ¶32 As a matter of practice in Arizona, however, trial judges provide jury instructions explaining the applicable the jury can readily understand. Noland v. Wootan, law in terms 102 Ariz. 192, 794, 42C P.2d, 143, 145 ~1967); Barrett v. Samaritan Health Servs., 53 An:. 138, 143, ll5 P.d 460, 465 ~App. 198~ . We find the reasonang of the dissent in Laxton persuasive: Although the words of [Wisconsin s SVP statute] might be interpreted by lawyers and judges to include a link 21 between the mental disorder and a serious difficult : ii. controlling ~ehavaor, the jury instructions cased directly on the language of [Wisconsin s SVP statume cc not set forth this link for non lawyers. Laxton, 647 N.W.2d at 798 mhe important state the (Abrahamson, C.J., dissenting Ga~ en . interests involved in SVP proceedangs :cr icon one and the individual, no question should arise as to whemne: jury disorder, understands the importance of findang mnam a menma_ rather than a voluntary decision to engage in repetitive criminal behavior, renders a person dangerous within the meaning of the SVP statute. To assure that jurors understand this requirement, we direct trial judges to instruct juries as follows in future SVP proceedings: The State must prove, beyond a reasonable doubt, that the person has a mental disorder that makes it highly probable that the person will engage in future acts of sexual violence. A finding of dangerousness, standing alone, is not a sufficient ground to determine an individual as a sexually violent person. An individual s dangerousness must be caused by a mental disorder which, in turn, causes the person to have serious difficulty in controlling his or her behavior. ¶33 In instructed Leon s the stated above.~ In Leon s commitment proceedings, the jury using language similar The judge, however, instructed commitment proceeding to trial the instruction that [p]roof of the judge instructed jury: Likely means of such nature or so circumstantial as to make something probable and having a better chance of existing or occurring than not. A finding of dangerousness, standing alone, is not a sufficient ground to convict respondent of being a sexually violent person. Proof of dangerousness must be caused by an existence of a mental disorder which makes it difficult, if not 22 judge the dangerousness must be caused by an existence of a macmcI disorder which makes it difficult, if not impossible, for the respondent to control his dangerous behavior. (Emphasis added.) Judges should not use the word impossible in describing a defendant s inability to control his or her behavior because this language incorrectly implies the state must prove an alleged SVP lacks complete or total control. Due process does not impose such an absolutist approach. See Crane, 534 U.S. at , 122 5. Ct. at 870. -- Iv. ¶34 For the foregoing reasons, we hold Arizona s SVP act complies with the substantive due process principles enunciated in Hendricks and Crane. Accordingly, we vacate the Court of Appeals decision in In re Leon 0., 199 Ariz. 375, 18 P.3d 169 (App. 2001), and affirm the trial court s decision. ¶35 Because Walker appears before us in a special action, we cannot determine from the limited record available whether Walker s jury received appropriate instructions, the extent of the evidence presented to establish Walker as an SVP, whether Walker contested the evidence presented, or which, if any, issues remain available impossible, for the respondent to control his dangerous behavior either immediately or over time. Leon requested the instruction defining likely in this manner and did not raise its appropriateness as an issue on appeal. He therefore waived review on this issue. See State v. Miranda, 200 Ariz. 67, 68, ¶ 1, 22 P.3d 506, 507 (2001). The record in Walker s case does not include the jury instructions from his commitment proceeding. Walker, like Leon, did not challenge the proprietary of the instructions used at his trial. 23 for Walker whether, to Walker at this point. We also cannot determine if Walker has preserved issues for appeal and can timely raase those error. raise issues, Therefore, from any error assertec. woul~ constitute harmaess we reverse the trial the Arizona State Hospital court s and order remand proceedings consistent with this opinion. Ruth V. McGregor Vice Chief Justice CONCURRING: Charles E. Jones, Chief Justice Stanley G. Feldman, Rebecca White Berch, Michael D. Ryan, Justice Justice Justice 24 releasing for further

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.