State of Arizona v. Hon. Ehrlich/eric Walker , 204 Ariz. 15 ( 2002 )

SUPREME COURT OF ARIZONA
En Banc
) Arizona Supreme Court
) No. CV-01-0062-PR
)
In re the Matter of LEON G. ) Court of Appeals
) Division One
) No. 1 CA-MH 00-0004
)
) Yuma County Superior
) Court
) No. SC98M00050
__________________________________)
) CONSOLIDATED WITH
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-01-0063-SA
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 01-0027
HON. SUSAN A. EHRLICH, HON. )
CECIL B. PATTERSON, JR. AND HON. ) Maricopa County Superior
JAMES B. SULT, JUDGES OF THE ) Court
STATE OF ARIZONA, in and for the ) No. CV-MH-99-1189
Arizona Court of Appeals, )
)
Respondents, )
) O P I N I O N
ERIC WALKER, )
)
Real Party in Interest. )
)
__________________________________)
Appeal from the Superior Court of Yuma County
No. SC98M00050
The Honorable Kirby D. Kongable, Judge
AFFIRMED
_________________________________________________________________
Opinion of the Court of Appeals
Division One
199 Ariz. 375, 18 P.3d 169 (App. 2001)
VACATED
_________________________________________________________________
Kristi A. Riggins, P.C. Phoenix
by Kristi A. Riggins
Attorney for Leon G.
Janet Napolitano, Arizona Attorney General Phoenix
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Consuelo M. 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 Against Sexual
Assault, Center Against Sexual Abuse, and Arizona Voice for
Victims, Inc.
Jamie McAlister Law Offices, LLC Phoenix
by Jamie McAlister
Attorney for Amicus Curiae Jamie McAlister
_________________________________________________________________
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 M. Howe, Chief Counsel,
Criminal Appeals Section
and Consuelo M. Ohanesian, Assistant Attorney General
Attorneys for State of Arizona
Daphne Budge Phoenix
Attorney for Walker
_________________________________________________________________
McGregor, Vice Chief Justice
¶1 These consolidated actions consider whether Arizona’s
Sexually Violent Persons (SVP) act, Arizona Revised Statutes
(A.R.S.) sections 36-3701 to 36-3717 (Supp. 2002), comports with
the substantive due process principles the United States Supreme
2
Court outlined in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct.
2072 (1997), and Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867(2002). We hold that the Arizona SVP act imposes proper procedures
and evidentiary standards and sufficiently narrows the class of
persons subject to commitment to assure compliance with
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 trial judge ordered his commitment to
the Arizona State Hospital, pursuant to A.R.S. section 36-
3707.B.1.1 The Court of Appeals vacated the order of commitment,
1
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 S. 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, ¶¶ 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 United
States Constitution. In re Leon G., 199 Ariz. 375, 381, ¶ 25, 18
P.3d 169, 175 (App. 2001). We granted the State’s petition for
review pursuant to Arizona Constitution Article VI, Section 5.3,
Arizona Rule of Civil Appellate Procedure 23, and A.R.S. section
12-120.24. After the Court of Appeals issued its decision in In re
Leon G., Walker, who also had been adjudicated an SVP and committed
to the State Hospital, moved for a release on the basis of that
decision. The trial court granted his motion. The State then moved
the Court of Appeals to issue a “blanket stay” of any releases
granted pursuant to the Court of Appeals’ Leon G. 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., 200 Ariz. 298, 26 P.3d 481 (2001)
vacated by Glick v. Arizona, __ U.S. __, 122 S. Ct. 1535 (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 Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072(1997), did not “impose ‘volitional impairment’ as a separate
requirement for civil commitment statutes.” In re Leon G., 200
Ariz. at 301, ¶ 10, 26 P.3d at 484. We explained that the state
satisfies its burden to show lack of control if the state
establishes beyond a reasonable doubt not only that a person is
dangerous, but also that a mental illness or disorder caused the
dangerousness, making it highly probable that the person will
engage in future acts of sexual violence. Id. at 302, 306, ¶¶ 12,
13, and 32, 26 P.3d at 485, 489.
¶4 Subsequent to our decision, the United States Supreme
Court revisited Hendricks in Kansas v. Crane, 534 U.S. 407, 122 S.
Ct. 867 (2002). After deciding Crane, the Court vacated our Leon
G. opinion and remanded the case to this court “for further
consideration in light of Kansas v. Crane.” Glick v. Arizona, __
U.S. __, 122 S. Ct. 1535 (2002).
II.
¶5 In Kansas v. Hendricks, the United States Supreme Court
considered the constitutionality of the Kansas Sexually Violent
Predator Act (Kansas act) that governs the civil commitment of
sexually violent predators.2 Recognizing that an individual’s
2
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. Kan. Stat. Ann. § 59-29a07(a) (Supp.
2001). The statute defines a sexually violent predator as “any
5
“liberty interest is not absolute,” the Court explained that
“[s]tates have in certain narrow circumstances provided for the
forcible civil detainment of people who are unable to control their
behavior and who thereby pose a danger to the public health and
safety.” Hendricks, 521 U.S. at 356-57, 117 S. Ct. at 2079.
¶6 Hendricks describes the “narrow circumstances” in which
states may involuntarily confine individuals. First, “the
confinement [must] take[] place pursuant to proper procedures and
evidentiary standards.” Id. at 357, 117 S. Ct. at 2080. Next, the
state must restrict commitment to “a limited subclass of dangerous
persons.” Id. In addition, and of central importance here, “[a]
finding of dangerousness, standing alone, is ordinarily not a
sufficient ground upon which to justify indefinite involuntary
commitment.” Id. at 358, 117 S. Ct. at 2080. Instead, civil
commitment statutes must “couple[] proof of dangerousness with the
proof of some additional factor, such as a ‘mental illness’ or
‘mental abnormality.’” Id. These added statutory requirements,
factors such as mental illness or mental abnormality, “serve to
limit involuntary civil confinement to those who 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 rendering them dangerous beyond their
control.” Id.
¶7 The United States Supreme Court revisited Hendricks and
the Kansas act in Kansas v. Crane, addressing mainly the requisite
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 court’s order committing Crane.3 In re
Crane, 7 P.3d 285, 290, 294 (Kan. 2000). 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. Crane, 534 U.S. at __,
122 S. Ct. at 870. This requisite lack of control, as well as “the
nature of the psychiatric diagnosis, and the severity of the mental
abnormality itself, must be sufficient to distinguish the dangerous
sexual offender whose serious mental illness, abnormality, or
disorder subjects him to civil commitment from the dangerous but
typical recidivist convicted in an ordinary criminal case.” Id.
¶8 Accordingly, to comport with substantive due process as
articulated in Hendricks and Crane, Arizona’s SVP act must impose
proper procedures and evidentiary standards. Additionally, it must
narrow the class of persons subject to commitment to only those who
3
Central to the court’s decision was the fact that 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 behavior to ensure
the act sufficiently distinguishes those subject to civil
commitment from the dangerous but typical recidivist.
¶9 We review the validity of a statute de novo and, if
possible, construe it so as to uphold its constitutionality.
Stewart v. Robertson, 45 Ariz. 143, 150-51, 40 P.2d 979, 983
(1935). We will not overturn an act of the legislature unless we
are “satisfied beyond a reasonable doubt” that the statute fails to
comply with the Constitution. State v. Gastelum, 75 Ariz. 271,
273, 255 P.2d 203, 204 (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 or was charged with a sexually violent
offense and was determined incompetent to 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
4
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. §§ 36-3701 to 36-3717.
8
acts to such a degree as to render the person a danger to the
health and safety of others.” A.R.S. § 36-3701.5.
¶11 An agency with jurisdiction over a person whom it
believes to be an SVP must notify the attorney general or county
attorney of the person’s expected release from custody between
thirty and one hundred eighty days before release. A.R.S. § 36-
3702. The agency must provide the attorney general or county
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. A.R.S. § 36-3704.
¶12 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. Id. If the judge determines that
probable cause exists, the judge must order the person to be
detained in a licensed facility under the supervision of the
superintendent of the Arizona State Hospital and must order an
evaluation of the person at the county’s expense. Id.
¶13 Within one hundred twenty days of the petition, the court
conducts a trial to determine if the person named in the petition
9
is an SVP.5 A.R.S. § 36-3706. Either party may request a trial by
jury. Id. The person named in the petition has a right 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. A.R.S. § 36-3703.
¶14 The state has the burden of proving beyond a reasonable
doubt that the person meets the statutory definition of an SVP.
A.R.S. § 36-3707. If the trier of fact finds, beyond a reasonable
doubt, that the person is an SVP, then the court must either
“[c]ommit the SVP to the custody of the department of health
services for placement in a licensed facility” or “[o]rder that the
[SVP] be released to a less restrictive alternative” if
appropriate. Id. If the SVP is committed, he or she “shall
receive care, supervision or treatment 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
5
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 treatment and
supervision. A.R.S. §§ 36-3709, 36-3714. Either petition results
in a hearing, at which the SVP may be present and participate, and
the state bears the burden of proving that conditional release or
discharge would be inappropriate. Id.
¶15 We conclude that Arizona’s SVP act imposes proper
procedures and evidentiary standards in compliance with the
Constitution. See Vitek v. Jones, 445 U.S. 480, 500, 100 S. Ct.
1254, 1268 (1980)(Powell, J., concurring)(stating due process
requires the state to provide “qualified and independent
assistance” to an inmate whom the state seeks to involuntarily
transfer to a mental hospital); Addington v. Texas, 441 U.S. 418,
433, 99 S. Ct. 1804, 1813 (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 S. 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 “after that
basis no longer exist[s]”); Jackson v. Indiana, 406 U.S. 715, 738,
92 S. Ct. 1845, 1858 (1972) (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 the state prove an alleged SVP’s mental disorder
causes him or her to have “serious difficulty in controlling
behavior.” Focusing on the absence of words such as “capacity” or
“control” in Arizona’s definitions of SVP and mental disorder, Leon
and Walker argue we must now declare Arizona’s SVP act
unconstitutional in light of Crane. They concede that the Arizona
SVP act in its original form might have satisfied the Crane
standard but argue the current version falls short of complying
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 that affects the emotional or volitional
capacity of a person.”6 1995 Ariz. Sess. Laws ch. 257 § 7. The
legislature, however, has since amended the act, and the definition
of mental disorder no longer includes this clause. This deletion,
argue Leon and Walker, indicates that the legislature did not
intend “serious difficulty in controlling behavior” to be one of
the elements of an involuntary commitment, and, therefore, the act
6
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. § 59-
29a02(b).
12
does not comply with the requirements articulated in Crane. The
State responds that Crane does not demand that an SVP 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 SVP act
does not include an express statutory provision requiring the state
to prove an individual has “serious difficulty in controlling” his
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 warning that the constitutionality of a
commitment statute does not depend upon the particular language
that a legislature chooses to narrow the class of persons eligible
for commitment. Hendricks, 521 U.S. at 359, 117 S. Ct. at 2081
(“[W]e have never required state legislatures to adopt any
particular nomenclature in drafting civil commitment statutes.”).
In Crane, the Court specifically declined the parties’ invitation
to impose a “bright-line rule[]” and reiterated that “[s]tates
retain considerable leeway in defining the mental abnormalities and
personality disorders that make an individual eligible for
commitment.” Crane, 534 U.S. at __, 122 S. Ct. at 871. The
Court’s reluctance to require particular statutory language
13
reflects its concern that “courts should pay particular deference
to reasonable legislative judgments” in the area of mental health
regulations. Jones v. United States, 463 U.S. 354, 365, n.13, 103
S. Ct. 3043, 3050 (1983); see also Addington, 441 U.S. at 431, 99
S. Ct. at 1812 (explaining “states must be free to develop a
variety of solutions to problems and not be forced into a common,
uniform mold” and “[a]s the substantive standards for civil
commitment may vary from state to state, procedures must be allowed
to vary so long as they meet the constitutional minimum”).
¶20 More importantly, the Court upheld the Kansas SVP
statute, which imposes no express “difficulty in controlling
behavior” requirement. In Hendricks, the Court did not focus on
the Kansas legislature’s use of the word “capacity” in defining
mental abnormality. Rather the Court concentrated on the
statutorily-required link between “a finding of future
dangerousness” and a “finding . . . of a ‘mental abnormality’ or
‘personality disorder.’” Hendricks, 521 U.S. at 358, 117 S. Ct.
at 2080. 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,” is what “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 ‘lack of control’ a particularly
narrow or technical meaning.” 534 U.S. at __, 122 S. Ct. at 870.
14
¶21 We conclude that Crane’s statement that a state must
prove “serious difficulty in controlling behavior” does not require
express statutory language, but rather reiterates the requirement
that an SVP statute substantially and adequately narrows the 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 of dangerousness and proof of mental
abnormality in upholding the Kansas Act. Hendricks and Crane
require the state to establish that a defendant suffers from a
mental incapacity that causes difficulty in controlling behavior to
ensure that the state distinguishes between dangerous sexual
offenders subject to involuntary commitment from typical
recidivists. Hendricks and Crane, however, afford legislatures the
autonomy to determine how the state must prove the requisite lack
of control.
III.
¶22 The question, then, is whether Arizona’s SVP statute
sufficiently narrows the class of persons subject to civil
commitment as SVPs. 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.
15
A.
¶23 To civilly commit an individual under the SVP act, the
state must prove, beyond a reasonable doubt, that the individual is
an SVP. A.R.S. § 36-3707.A. The statute defines an SVP as an
individual who “[h]as ever been convicted of or found guilty but
insane of a sexually violent offense or was charged with a sexually
violent offense and was determined incompetent to stand trial.”
A.R.S. § 36-3701.7. In addition, the person must exhibit “a mental
disorder that makes the person likely to engage in acts of sexual
violence.” Id. (emphasis added).7
¶24 Although the SVP act applies only to those persons whose
mental disorder makes them likely to engage in future acts of
sexual violence, the statute does not define “likely.” Because the
meaning attached to the term affects the scope of the class of
persons subject to civil confinement under the act, we 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; very probable.” Merriam-Webster’s
Collegiate Dictionary 674 (10th ed. 1999). Courts have attached
7
Mental disorder means a “paraphilia, personality
disorder or conduct disorder or any combination of [those] that
predisposes 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. § 36-3701.5.
16
various meanings to the term, depending to a large extent upon the
context within which it is used. E.g., United States v. Powell,
761 F.2d 1227, 1233 (8th Cir. 1985) (likely means more likely than
not; more probable than not); In re Foster, 426 N.W.2d 374, 377
(Iowa 1988)(likely means “probable or reasonably to be expected”);
Holden v. Missouri R. Co., 84 S.W. 133, 136 (Mo. Ct. App. 1904)
(likely means “reasonably certain to accrue in the future”). The
Arizona Court of Appeals has interpreted a criminal statute
referring to “circumstances likely to produce death or serious
physical injury,” A.R.S. section 13-3623 (2001), as meaning
probable as compared with possible. State v. Johnson, 181 Ariz.
346, 350, 890 P.2d 641, 645 (App. 1995); see also Martin v.
Reinstein, 195 Ariz. 293, 314 ¶ 68, 987 P.2d 779, 800 (App. 1999)
(holding the SVP statute requires a probability, not a mere
possibility of future dangerousness).
¶26 As those decisions demonstrate, defining “likely” as
meaning “probable” raises no due process concerns. 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 instance, after considering other statutory
language, we conclude that the legislature’s use of the term
“likely” reflects its decision to require a standard somewhat
higher than “probable.” Dietz v. Gen. Elec. Co., 169 Ariz. 505,
17
510, 821 P.2d 166, 171 (1991) (explaining that when the meaning of
a statutory term is not clear, we look to the overall language of
the statute for assistance). The legislature provided guidance as
to the meaning of “likely” in section 10 of the SVP act, which sets
out the legislative findings that led to the passage of the act.
1995 Ariz. Sess. Laws ch. 257 § 10. Subsection 3 directly
addresses the civil commitment procedure adopted as part of the
act. In that subsection, the legislature noted that, for a “small
but extremely dangerous group of sexually violent predators,” the
“likelihood of the sex offenders engaging in repeat acts of
predatory sexual violence is high.” Id. (emphasis added). That
language bears a striking similarity to the common and dictionary
definitions of “likely” as being “highly probable.” Construing the
term as meaning “highly probable” also 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 that “can reasonably be expected . . . to result in
serious physical harm.” A.R.S. § 36-501.4 (1993). If the
legislature had intended the same standard to apply in the two
statutory schemes, we think the legislature would have used the
same terms. Use of “likely” rather than “reasonably expected”
indicates the legislature intended to adopt a more stringent
standard in the SVP act.8
8
Other jurisdictions also have interpreted “likely” in
sexually dangerous persons civil commitment statutes as meaning
18
B.
¶28 The Arizona SVP statute thus permits civil commitment of
a person as an SVP only if the state proves, beyond a reasonable
doubt, that (1) the person has a mental disorder, as defined in
A.R.S. section 36-3701, that predisposes the person to commit
sexual acts to such a degree that he or she is dangerous to others
and (2) the mental disorder makes it highly probable that the
person will engage in acts of sexual violence. The dictionary
defines “make” as meaning “to cause to act in a certain way” or to
“compel.” Merriam-Webster’s Collegiate Dictionary 702 (10th ed.
1999). Recently, the Arizona Court of Appeals interpreted “makes,”
as used in the SVP act, as meaning “impair[ing] or tend[ing] to
overpower the person’s ability to control his or her behavior.” In
re Wilber W., __ Ariz. __, ¶ 18, 53 P.3d 1145, 1149 (App. 2002).
We agree with and adopt this interpretation of the statutory
language. As thus construed, 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
“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.
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
decision, makes the person act in a certain manner, the state has
shown that the person has “serious difficulty in controlling” his
or her behavior.
¶29 Accordingly, the Arizona SVP act requires much more than
a finding of dangerousness. The statute permits confinement only
if the state demonstrates the cause and effect relationship between
the alleged SVP’s mental disorder and a high probability the
individual will commit future acts of violence. Typical recidivists
who choose to commit acts of sexual violence do not fall within the
purview of Arizona’s SVP 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. Hence,
although the statute does not expressly refer to “serious
difficulty in controlling behavior,” the statutory language does
embody the functional equivalent of that phrase. Therefore,
Arizona’s SVP act distinguishes “the dangerous sexual offender
whose serious mental . . . disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in
an ordinary criminal case” in compliance with Hendricks and Crane.
Crane, 534 U.S. at __, 122 S. Ct. at 870.
¶30 Other jurisdictions confronted with challenges to SVP
statutes after Crane have concluded that a jury necessarily finds
a defendant lacks the requisite control when the state links the
individual’s mental disorder and dangerousness. See In re
20
Luckabaugh, 568 S.E.2d 338, 349 (S.C. 2002) (“Inherent within the
mental abnormality prong of the Act is a lack of control
determination.”); In re Laxton, 647 N.W.2d 784, 793 (Wis. 2002)
(concluding proof of the nexus between the individual’s mental
disorder and dangerousness “necessarily and implicitly involves
proof that the person’s mental disorder requires serious difficulty
for such person in controlling his or her behavior”). The
reasoning of these courts further supports our interpretation of
the Arizona SVP act.
C.
¶31 Some jurisdictions, after holding that the state, by
establishing a nexus between the individual’s mental disorder and
dangerousness, necessarily proves that an alleged SVP has
difficulty in controlling his behavior, have declined to require a
specific instruction including the Crane “serious difficulty in
controlling behavior” language. See Illinois v. Hancock, 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). We agree with
these courts that due process requirements, 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 law in terms
the jury can readily understand. Noland v. Wootan, 102 Ariz. 192,
194, 427 P.2d, 143, 145 (1967); Barrett v. Samaritan Health Servs.,
21
153 Ariz. 138, 143, 735 P.2d 460, 465 (App. 1987). We find the
reasoning 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
between the mental disorder and a serious difficulty in
controlling behavior, the jury instructions based
directly on the language of [Wisconsin’s SVP statute] do
not set forth this link for non-lawyers.
Laxton, 647 N.W.2d at 798 (Abrahamson, C.J., dissenting). Given
the important interests involved in SVP proceedings for both the
state and the individual, no question should arise as to whether
the jury understands the importance of finding that a mental
disorder, rather than a voluntary decision to engage in repetitive
criminal behavior, renders a person dangerous within the meaning of
the SVP statute. Accordingly, trial judges should specifically
instruct juries as follows:
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 is 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 Leon’s commitment proceedings, the trial judge
instructed the jury using language similar to the instruction
stated above.9 The judge, however, instructed that “[p]roof of
9
In Leon’s commitment proceeding the judge instructed the
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
22
dangerousness must be caused by an existence of a mental 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 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 S. 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 G., 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
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
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.
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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
for Walker to raise at this point. We also cannot determine
whether, if Walker has preserved issues for appeal and can timely
raise those issues, any error asserted would constitute harmless
error. Therefore, we reverse the trial court’s order releasing
Walker from the Arizona State Hospital and remand for further
proceedings consistent with this opinion.
______________________________
Ruth V. McGregor
Vice Chief Justice
CONCURRING:
____________________________________
Charles E. Jones, Chief Justice
____________________________________
Stanley G. Feldman, Justice
_______________________________
Rebecca White Berch, Justice
___________________________________
Michael D. Ryan, Justice
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