Opinion
1 CA-MH 21-0059
05-03-2022
IN RE: MH2021-005634
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
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 substantive law.'" Id. (quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975)). Accordingly, a trial court may terminate self-representation when a defendant "engages in serious and obstructionist misconduct," Faretta, 422 U.S. at 834 n.46, refuses to proceed as scheduled, Hidalgo, 241 Ariz. at 556, ¶ 54, fails to abide by disclosure rules, Gomez, 231 Ariz. at 223, ¶¶ 15-16, or exhibits "utter and complete" disregard for the court, State v. Martin, 102 Ariz. 142, 146 (1967). But the court's discretion is not unlimited. See, e.g, Hidalgo, 241 Ariz. at 556, ¶ 56 (noting court cannot revoke representation for failing to prepare his case appropriately).
¶16 Here, the record does not support the court's revocation of Patient's self-representation. The burden of proof is on Petitioner to present clear and convincing evidence of disability, including the testimony of physicians to a reasonable degree of medical certainty or probability. In re MH 2007-001236, 220 Ariz. 160, 169, ¶ 29 (App. 2008). Patient had the right to refuse to stipulate to the admission of the affidavits. See A.R.S. § 36-539(B) (requiring "testimony of the two physicians who participated in the evaluation of the patient, which may be satisfied by stipulating to the admission of the evaluating physicians' affidavits" (emphasis added)). Petitioner concedes that "[i]n a vacuum, the court's decision might be troubling," but argues revocation was warranted because "the sole basis for Patient's objection" was Dr. Hadziahmetovic's ability to comprehend English. (Emphasis added.) But neither the statute nor rule require Patient to provide a reason for his refusal to stipulate to the admission of affidavits in lieu of live testimony. And the record reflects that the court did not allow Patient to elaborate on additional objections or cross-examination questions for the doctors. Indeed, Patient noted he had "two things to [say] to that" but was denied the opportunity to develop his argument.
¶17 Patient's issue with the use of Dr. Hadziahmetovic's affidavit fails to rise to the level of disrespect or inappropriate behavior necessary to support revocation of self-representation. Cf Gomez, 231 Ariz. at 223, ¶¶ 15-16 (affirming revocation of self-representation following warnings and "several years" of failing to "comply with court deadlines and disclosure rules"); State v. Hill, 1 CA-CR 19-0377, 2022 WL 244078, at *7, ¶¶ 33-35 (Ariz. App. Jan. 27, 2022) (mem. decision) (affirming revocation of self-representation based on "expletive ridden outbursts in open court," "swearing at the judge," and "contemptable conduct"). Patients can question the qualifications of the evaluating physicians. See In re MH 2009-001264, 224 Ariz. 270, 273-74, ¶¶ 12, 15 (App. 2010) (as corrected) (noting patient could have challenged whether "the evaluating physicians were psychiatrists or licensed physicians" at the hearing). And while the court is certainly empowered to prevent the harassment of a witness, the record reveals no suitable example of harassment to justify the court's exercise of that authority. See Ariz. R. Evid. 611(a) ("The court should exercise reasonable control over the mode and order of examining witnesses . . . to . . . avoid wasting time; and . . . protect witnesses from harassment or undue embarrassment."). The court did not even warn Patient that questioning a witnesses' English mastery could result in revocation of self-representation. Cf. State v. Whalen, 192 Ariz. 103, 107-08 (App. 1997) (noting "it was incumbent upon the trial court to provide [pro se litigant] with timely notice that his behavior could result in the revocation of his right" to self-representation).
IV. Strict Compliance with Statutory Requirements.
¶18 Were this a criminal case our inquiry would end here, as an improper revocation of the Sixth Amendment right to self-representation is structural error. Weaver v. Massachusetts, 137 S.Ct. 1899, 1908 (2017); cf. In re Hospitalization of Arthur A., 457 P.3d 540, 550 (Alaska 2020) (applying structural error in civil commitment case). Petitioner asserts that "structural error" does not apply because "criminal law principles are inapplicable in this context" and any error did not affect Patient's substantial rights. However, we need not decide whether structural-error principles apply in this context.
¶19 Patient asserts that reversal is necessary because the court's error in revoking self-representation resulted in a violation of the statute requiring the testimony of two physicians. See In re Pima Cnty. Mental Health No. MH20130801, 237 Ariz. 152, 155, ¶ 13 (App. 2015) (noting failure to comply strictly with the statute requires court to vacate an involuntary treatment order); see also MH2011-000914, 229 Ariz. at 315-16, ¶¶ 12, 15-16 (vacating order when physician's affidavit did not comply with statute). Petitioner counters that Counsel stipulated to the physicians' affidavits and any error was harmless, citing MH 2009-001264, where we held that a patient's consent is not required to admit affidavits from examining physicians. 224 Ariz. at 272-73, ¶¶ 10-11.
¶20 But this case differs significantly from MH 2009-01264, where the patient did not seek self-representation. See id. at 273, ¶ 11 & n.5 (noting "whether and how to present and cross-examine witnesses is a question of trial strategy that is controlled by counsel"); A.R.S. § 36-537(D) (allowing "patient's attorney [to] enter stipulations on behalf of the patient"). Here, the court's error in revoking Patient's right to self-representation led to Counsel's reappointment. But "unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction." Faretta, 422 U.S. at 821. If the record reflected consultation between Counsel and Patient after reappointment and before agreeing to stipulate, Patient likely could not show prejudice. See A.R.S. § 36-537(B)(1) (requiring attorney to "explain to the patient the patient's rights"). But in the absence of any record explanation for the change in course, the court's error in terminating self-representation appears to have led directly to the admission of the challenged affidavits. Accordingly, the court failed to "strictly comply" with the statutory requirements and we are required to vacate the treatment order.
CONCLUSION
¶21 For the foregoing reasons, we vacate the court's treatment order and remand for proceedings consistent with this decision.