Opinion
Arizona Supreme Court No. CV-01-0062-PR, Court of Appeals Division One No. 1 CA-MH 00-0004, Yuma County Superior Court No. SC98M00050, Arizona Supreme Court No. CV-01-0063-SA, Court of Appeals Division One No. 1 CA-SA-01-0027, Maricopa County Superior Court No. CV-MH-99-1189,
Filed February 23, 2001.
ORDER GRANTING STAYS
We have consolidated the petition for review in In re Leon G. with the petition for special action in State v. Walker for the purpose of considering the requests for interlocutory stay filed in each case. Ms. Janet Napolitano, Mr. Scott Bales, and Mr. Randall M. Howe appeared by telephone on behalf of the state. Ms. Daphne Budge appeared by telephone on behalf of Eric Walker, the real party in interest in CV-01-0063-SA. Ms. Kristi A. Riggins appeared by telephone on behalf of Leon G. in CV-01-0062-PR. She claims that she has substituted in for George A. Rouff. The state claims that it is not aware of any such substitution and that George A. Rouff indicated that he did not oppose the request for stay. Ms. Jamie McAlister appeared by telephone on behalf of Harold Ray, a litigant in the Superior Court of Arizona in Maricopa County, No. CV-97-16011.
We expedited consideration of the requests for stay on February 21, 2001, because the state advised us that Judge Mangum had ordered the release of Mr. Ray by 5:00 p.m. on February 21 unless a stay was issued. In CV-01-0063-SA, although the court of appeals granted a stay with respect to Walker until February 23, 2001, it denied the request of the state for a "blanket stay . . . without prejudice to renew such a request to the Arizona Supreme Court." Order of Feb. 20, 2001 at 1.
In In re Leon G., 1 CA-MH 00-0004 (Feb. 15, 2001), the court of appeals held the Sexually Violent Persons Act, A.R.S. §§ 36-3701 through 36-3716, unconstitutional. The state asks that we suspend the stare decisis effect of the opinion of the court of appeals pending an opportunity of the full court to consider the state's petition for review. It seeks this non-case specific relief because of the sheer numbers of such cases pending in the system.
In granting or denying interlocutory relief, we consider (1) the probability of success on the merits, (2) the harm that would be caused the applicant if the stay were denied, (3) the harm that would be caused the opposing party if the stay were granted, and (4) the public interest. We also consider preserving the full court's opportunity to hear the merits of a matter that might be jeopardized if a stay is denied.
Because of the accelerated nature of the hearing on the stay requests, the parties have had an inadequate opportunity to brief the underlying merits of the holding in In re Leon G. Thus, it cannot be said that the state has, at this early stage of the proceeding, made a showing of probability of success on the merits. Nor could this court independently evaluate the merits on such short notice.
The state has shown that significant harm may flow to it if the stay is not granted. The state is of the view that once released, the provisions of the Sexually Violent Persons Act no longer apply. Even if they do apply, the state is concerned that given the sheer numbers of such persons, it would be impossible or difficult to find them all in the event this court were to vacate the opinion of the court of appeals.
The defendants in these cases have made a showing that they would be harmed by a granting of the stay, because they will be kept in custody until the full court considers the petition for review. This harm can be minimized by expedited consideration.
The public interest is served by not being subjected to the risk of violence in the event that one or more of the released persons should recommit while on release. The public also has an interest in having this court decide the merits of the petition for review before the issues are mooted by premature release.
Finally, the court has an interest in preserving the status quo in order to give the full court an opportunity to fairly consider the petition for review.
Weighing all of these factors together, we conclude that an interlocutory stay is warranted. IT IS THEREFORE ORDERED staying and suspending the stare decisis effect of In re Leon G., 1 CA-MH 00-0004 (Feb. 15, 2001). Therefore, no court shall release any person otherwise subject to the Sexually Violent Persons Act solely upon the authority of the opinion in In re Leon G.
Given the nature of this relief, IT IS FURTHER ORDERED expediting consideration of this matter. Ms. Budge will file a response on behalf of Mr. Walker no later than March 2, 2001. Ms. Riggins and/or Mr. Rouff will file a response on behalf of Leon G. no later than March 2, 2001. Ms. Jamie McAlister will file an amicus brief in support of the position of Leon G. no later than March 2, 2001. The state shall file a consolidated reply no later than March 9, 2001. The petition for review and the petition for special action are consolidated for consideration by the full court without oral argument on March 20, 2001. At that time, depending upon its resolution, the full court will either vacate this stay or continue it.
Dated this 21st day of February, 2001.
________________________ Frederick J. Martone Duty Justice