Opinion
No. 1 CA-MH 13-0048
01-28-2014
IN RE MH2013-001946
COUNSEL Maricopa County Legal Defender's Office, Phoenix By Anne H. Phillips Counsel for Appellant Maricopa County Attorney's Office, Phoenix By Bruce P. White and Anne C. Longo Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. MH2013-001946
The Honorable Susan G. White, Judge Pro Tem
AFFIRMED
COUNSEL
Maricopa County Legal Defender's Office, Phoenix
By Anne H. Phillips
Counsel for Appellant
Maricopa County Attorney's Office, Phoenix
By Bruce P. White and Anne C. Longo
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined. KESSLER, Presiding Judge:
¶1 This appeal arises from an order of civil commitment. Appellant argues that her counsel was ineffective and she was denied due process because she had to proceed through the civil commitment evidentiary hearing despite the fact that her counsel was not able to interview Petitioner's acquaintance witnesses twenty-four hours before the hearing as allegedly required by Arizona Revised Statutes ("A.R.S.") section 36-537(B)(3) (Supp. 2013). For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 A petition for court-ordered treatment ("COT") alleging Appellant was persistently or acutely disabled was filed in June 2013. See A.R.S. § 36-533 (Supp. 2013). At the evidentiary hearing, see A.R.S. § 36-539 (Supp. 2013), the county attorney informed the court that:
When I got here this morning, there were two [acquaintance] witnesses here, Mr. [P] and Mr. [R], and I interviewed them trying to find out what they would be ready to testify to. Both these gentlemen are involved in the [Appellant's] case, but neither of them have first-hand information about her case. I then learned that [Appellant's] mother and sister were here . . . . They're willing to testify, but I - you know, they've not been disclosed as witnesses until about 15 minutes ago . . . .The county attorney did not request a continuance, see A.R.S. § 36-535(B) (Supp. 2013), but offered: "If you allow us to call . . . these two witnesses, mother and daughter, I will be calling them. If not, then we will be moving to dismiss the case without prejudice."
¶3 Appellant's counsel told the superior court that although he started to interview mother, he had not yet interviewed sister. The court suggested a recess so counsel could conduct the interviews, but counsel objected arguing that "[t]here's a reason for notice ahead of time," "these witnesses are supposed to be prepared ahead of time," and "[i]f we just allow the County Attorney to just use whoever shows up whenever this happens, then we might as well not follow any rules."
¶4 The superior court ordered Appellant's counsel to interview mother and sister and recessed the hearing for thirty minutes. Upon returning, the court asked Appellant's counsel if he found "anything during [the] interview[s] that [counsel] feel[s] [he] need[s] to investigate further?" Appellant's counsel stated that although he had a sufficient opportunity to interview the witnesses, he did not have a chance to speak with Appellant in light of those interviews. The court again recessed the hearing for one and one half hours to permit counsel to confer with Appellant.
¶5 Upon resuming the hearing, the superior court asked Appellant's counsel if a continuance was needed. See A.R.S. § 36-535(B). Counsel stated, "I don't know the answer to that question. . . . A lot more information has come to my attention . . . and any continuance . . . violate[s] [Appellant's] due process rights because all these delays are keeping her here longer than she needs to be." Counsel argued that he was prevented from fulfilling his minimal duties mandated by A.R.S. § 36-537 because the late change in witnesses caused him to be unable to interview the testifying witnesses twenty-four hours in advance of the hearing. Counsel argued that Appellant's "case is prejudiced because it forces [counsel] into position [sic] of possibly being ineffective by rushing, not having adequate time to explore possible, additional witnesses or evidence."
Counsel argued that the situation was also unfair because he is "required to give 24-hour notice if [he] intend[s] to call one of the doctors," and "give advance notice of any defense witnesses."
¶6 Counsel argued both that he was unable to adequately investigate and interview witnesses, and that a continuance would violate Appellant's due process rights. Counsel asserted that had he known the identities of the correct acquaintance witnesses earlier, he "may have handled thing[s] differently." He explained that the prior day, he was informed that one witness noticed in the COT petition, Mr. P, was not going to be at the hearing. Instead, another person named Frank would be in attendance, so counsel interviewed Frank, but then Mr. P arrived for the hearing, and thus, counsel had to interview Mr. P after all.
¶7 In response, the county attorney argued that Appellant was trying "to take advantage of what was obviously a ministerial error. The two witnesses who were listed [in the petition] had no first-hand knowledge of the information that was contained in the petition." The county attorney offered, "It's just there was a ministerial error, and we have two different people that will say that information which has been avowed by the doctor in his affidavit."
¶8 The superior court explained that A.R.S. § 36-537(B)(3) requires counsel to interview witnesses when they are known and available, and thus, when "they're made known the morning of the hearing, it certainly doesn't put [Appellant's counsel] in a position where [counsel is] in violation of [counsel's] responsibilities." The court determined "[t]his is a situation where it is a ministerial error," and explained that "sometimes we don't have the right witnesses." The court could not "see any way that [Appellant] is going to be prejudiced if the testimony [the county attorney is] eliciting is within the four corners of the information that was already provided in the affidavit." The court overruled Appellant's objection because it did not think dismissal was required. The hearing proceeded with testimony from mother and sister.
¶9 Appellant cross-examined the witnesses, but did not testify or present witnesses on her own behalf, and her counsel did not reassert the due process/ineffective assistance of counsel argument at the close of evidence. The superior court found Appellant was persistently or acutely disabled as a result of a mental disorder and ordered Appellant to undergo combined inpatient/outpatient treatment for 365 days with inpatient treatment not to exceed 180 days.
¶10 Appellant timely filed a notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 36-546.01 (2009), 12-2101(A)(10)(a) (Supp. 2013).
STANDARD OF REVIEW
¶11 "We view the facts in a light most favorable to upholding the court's ruling." In re MH2009-002120, 225 Ariz. 284, 290, ¶ 17, 237 P.3d 637, 643 (App. 2010). This Court reviews issues of statutory interpretation de novo. In re MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002). When construing statutes we give meaning to each clause and to the spirit and purpose of the law, In re MH2010-002637, 228 Ariz. 74, 80-81, ¶ 24, 263 P.3d 82, 88-89 (App. 2011), and in doing so we look to the scheme as a whole, Kaku v. Ariz. Bd. of Regents, 172 Ariz. 296, 297, 836 P.2d 1006, 1007 (App. 1992). See also Milner v. Colonial Trust Co., 198 Ariz. 24, 27, ¶ 8, 6 P.3d 329, 332 (App. 2000). Clear and unambiguous language is given its plain and ordinary meaning unless absurd consequences would result. MH2010-002637, 228 Ariz. at 80-81, ¶ 24, 263 P.3d at 88-89; MH 2001-001139, 203 Ariz. at 353, ¶ 12, 54 P.3d at 382 ("[T]he primary purpose of statutory interpretation is to effectuate legislative intent," the best evidence of which is the plain language of the statute).
ISSUES ON APPEAL
¶12 Appellant argues that the superior court's treatment order should be vacated. Without arguing that she was prejudiced, Appellant contends the last minute change of acquaintance witnesses denied her due process rights because her counsel rendered ineffective assistance by failing to interview the witnesses twenty-four hours in advance of the hearing as, according to Appellant, A.R.S. § 36-537(B) required.
Nor does Appellant challenge mother's or sister's qualifications as an acquaintance witness or the sufficiency of the evidence supporting the superior court's civil commitment order.
¶13 Appellee suggests that there is no requirement to disclose acquaintance witnesses. It also argues "the record does not permit this Court to conclude that the Trial Court abused its discretion," and counsel was not ineffective because the statute only requires interviews if the witnesses are known and available, and here, "[t]he acquaintance witnesses . . . were not known and available until shortly before the hearing." Although we disagree with Appellee on the disclosure requirement, we agree that there was no abuse of discretion and no ineffective assistance of counsel.
Appellee also argues that because Appellant did not re-raise her due process/ineffective assistance of counsel argument after the close of evidence, that Appellant has waived the argument. In our discretion and because we conclude that there was no error, we decline to address Appellee's waiver argument.
DISCUSSION
I. Petitions for COT, evidentiary hearings, counsel's duties, and acquaintance witness disclosure.
¶14 A COT petition must be accompanied by an affidavit of the applicant for a court-ordered evaluation, and the affidavits of the two physicians who evaluated the patient. A.R.S. § 36-533(B). Appellee suggests that any pre-hearing disclosure of its acquaintance witnesses is merely done as a courtesy. We disagree because such disclosure is consistent with the importance of acquaintance witnesses to the hearing process.
¶15 Although we could find no rule that expressly requires advance disclosure of acquaintance witnesses prior to the hearing, we start with the clear statutory requirement that evidence from acquaintance witnesses must be presented to support a treatment order. A.R.S. § 36-539(B) (governing the requirements for an evidentiary hearing and stating that "[t]he evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder, which may be satisfied by a statement agreed on by the parties . . . ."); see In re Commitment of Alleged Mentally Disordered Person, No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995) (reversing civil commitment order in case where two acquaintance witnesses were ineligible to testify as acquaintance witnesses because they participated in the evaluation of the patient for purposes of civil commitment). We have previously explained that acquaintance witnesses play an important role before a court can order involuntary treatment. See generally MH 1425, 181 Ariz. at 292, 889 P.2d at 1090 (stating that the purpose of acquaintance witnesses is first, "to prevent professional mental health evaluators . . . from simply ratifying or 'rubber stamping' one another's findings; and second, to give the trial court an opportunity to determine how the patient behaves in situations other than commitment evaluation interviews"); MH 2001-001139, 203 Ariz. at 355-56, ¶ 25, 54 P.3d at 384-85 (type of evidence the statute requires acquaintance witnesses to give is "day-to-day observation").
Coinciding with the adoption of the Arizona Rules of Probate Procedure ("Probate Rules"), in 2009, Rule 5 of the Local Rules of Practice for Maricopa County pertaining to probate and mental health cases was rescinded. The administrative order rescinding the local rules stated, "It [was] the intention of the Arizona Supreme Court that [the Probate Rules] supplant and replace all Local Rules of Practice that have been previously adopted in any Arizona County that pertain to practices and procedures in the administrations of probate and mental health cases arising pursuant to Title 14 and Title 36 . . . ." Maricopa County Superior Court Admin. Order No. 2008-160 (Dec. 9, 2008). A review of the Probate Rules, however, reveals that the rules do not address practices and procedures for civil commitment/mental health proceedings. The preamble and Rule 1 of the Probate Rules both state that the rules apply to and govern procedures in "proceedings to challenge or enforce the decision of one authorized to make health care decisions for a patient." The comment to Rule 1 explains that the rules are not intended to apply to mental health matters governed by A.R.S. § 36-501 et seq. and only apply to proceedings pursuant to statutes not at issue here.
Although the Arizona Rules of Civil Procedure and the Arizona Rules of Evidence apply to mental health proceedings insofar as they are not inconsistent with the statutes governing such proceedings, see A.R.S. § 36539(D), the civil procedure disclosure rules do not smoothly translate to truncated mental health proceedings. Nor does regulatory law governing mental health proceedings, and specifically the Arizona Administrative Code ("A.A.C") Title 9, Chapter 20, Article 8, provide supplemental requirements for disclosure of acquaintance witnesses.
¶16 Despite the lack of an express requirement for such disclosure prior to the treatment hearing, we conclude that such disclosure facilitates the appropriate functioning of civil commitment proceedings. Section 36-539(B) expressly requires testimony from two acquaintance witnesses at the COT hearing. If a petitioner fails to present such witnesses at the hearing or the witnesses do not support the petition, the superior court should deny the petition at the close of the petitioner's case. Presumably, prior to the hearing, counsel for the petitioner will ensure the acquaintance witnesses support the COT petition, thus making the witnesses known and available to the petitioner's counsel prior to the hearing. Once those witnesses are known and available to the petitioner's counsel, they must be disclosed to give effect to A.R.S. § 36-537(B)(3), which requires the patient's counsel "[a]t least twenty-four hours before the hearing" to "interview . . . the petitioner's supporting witnesses, if known and available."
¶17 Here, Appellee disclosed acquaintance witnesses in advance of the hearing, but due to an error, discovered on the morning of the hearing that such witnesses could not testify as such. Appellee informed Appellant's counsel and counsel was given an opportunity to interview the witnesses before proceeding with the hearing. In light of this, and absent some showing of prejudice, the pre-hearing disclosure of mother and sister as acquaintance witnesses—coupled with the continuance of the hearing to allow interviews and offer of a longer continuance to permit Appellant's counsel to further prepare—was consistent with the statutory requirements.
II. The alleged failure to disclose did not cause Appellant's counsel to render ineffective assistance by violating the twenty-four hour interview requirement in A.R.S. § 36-537, and thus, Appellant was not denied due process due to ineffective assistance of counsel.
¶18 Here, the superior court concluded that the failure to disclose was inadvertent and Appellant does not challenge that conclusion. Instead, Appellant argues the failure to disclose rendered her counsel ineffective, and thus, violated her due process rights because counsel was not able to interview the two witnesses twenty-four hours in advance of the hearing.
¶19 We conclude that the failure to interview mother and sister twenty-four hours before the hearing in this case did not render Appellant's counsel ineffective. Pursuant to A.R.S. § 36-537(B), one of counsel's "minimal duties" in preparation for the COT evidentiary hearing is that: "[a]t least twenty-four hours before the hearing, [counsel must] interview . . . the petitioner's supporting witnesses, if known and available." (Emphasis supplied.) Despite the implicit pre-hearing disclosure requirement discussed above, subsection (B) contemplates that in certain circumstances disclosure will not be able to be made at least twenty-four hours in advance of the hearing. For example, in instances such as this when the petitioner learns immediately before the hearing that the previously disclosed acquaintance witnesses are not qualified to testify, subsection (B) does not create an inflexible duty to interview unknown or unavailable acquaintance witnesses in the same twenty-four hour time frame. Nor does the statute prevent the superior court from exercising discretion, as it did here, to determine if or how the matter should proceed. Based on the statutory language, we disagree with Appellant that her counsel was non-compliant with subsection (B)'s twenty-four hour interview requirement and therefore rendered per se ineffective assistance in violation of Appellant's due process rights. Here, the testifying acquaintance witnesses were not known until the morning of the hearing. There is no evidence or superior court finding that the mistaken and/or late disclosure was anything but inadvertent or created any prejudice. Although counsel's interviews with mother and sister did not occur twenty-four hours in advance of the hearing, there is no indication that counsel's action constitutes per se ineffective assistance given the totality of the facts.
¶20 Nor can we conclude that the failure to interview mother and sister twenty-four hours before the hearing rendered counsel's assistance ineffective or prejudiced Appellant. Counsel informed the superior court that he had sufficient time to interview mother and sister and talk to Appellant after the interviews during a recess. Counsel also refused to request a continuance to further prepare. See A.R.S. § 36-535(B). Counsel argued below that a continuance was unfair because the delay kept Appellant involuntarily hospitalized longer than necessary. However, had a continuance been requested and granted, Appellant could have proceeded to a hearing to determine whether she "should be involuntarily hospitalized during the continuation period." Id.
¶21 In sum, we disagree with Appellant that counsel was non-compliant with subsection (B). Appellant fails to establish counsel's performance was deficient under the statute or otherwise or that she suffered any prejudice. Regardless of which standard is used to determine ineffective assistance of counsel, Appellant has failed to show ineffective assistance of counsel or any prejudice to her. See MH 2010-002637, 228 Ariz. at 83 n.6, ¶ 33, 263 P.3d at 91 n.6 (setting forth various tests for ineffective assistance of counsel claims in civil commitment proceedings). Appellant's counsel was given time to interview the two acquaintance witnesses and confer privately with Appellant after such interviews. He was also given the option of asking for a continuance of the hearing to further prepare to rebut the acquaintance witnesses, but declined the opportunity. Counsel was able to cross-examine the acquaintance witnesses and did not identify any need for more time to prepare to adequately represent Appellant. As this Court has previously noted, even the failure to cross-examine witnesses or present rebuttal evidence, does not mean counsel was ineffective per se. Id. at 82, ¶ 33, 263 P.3d at 90.
¶22 Given the record in this case, we hold that Appellant has no claim of ineffective assistance of counsel. Likewise, because Appellant's due process claim hinges upon her ineffective assistance of counsel claim, see id. at 81-82, ¶¶ 28-29, 263 P.3d at 89-90, her due process claim also fails.
CONCLUSION
¶23 For the foregoing reasons, we affirm.