SUPREME COURT OF ARIZONA
En Banc
IN RE MH-2008-000867 ) Arizona Supreme Court
) No. CV-09-0297-PR
)
) Court of Appeals
) Division One
) No. 1 CA-MH 08-0022
)
) Maricopa County
) Superior Court
) No. MH2008-000867
)
)
) O P I N I O N
)
Appeal from the Superior Court in Maricopa County
The Honorable Benjamin E. Vatz, Commissioner
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
222 Ariz. 287, 213 P.3d 1014 (2009)
VACATED
________________________________________________________________
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Attorneys for MH 2008-000867
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Anne C. Longo, Deputy County Attorney
Geraldine Roll, Deputy County Attorney
Attorneys for State of Arizona
BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Barbara S. Burstein, Deputy County Attorney
Attorneys for Amicus Curiae Barbara LaWall
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 The issue in this case is whether the superior court
erred by allowing an evaluating physician to testify
telephonically in a mental health commitment proceeding.
Because the treatment order has expired, this case is arguably
moot. We nonetheless accepted review because the issue
presented is of statewide importance and capable of evading
review. See In re Commitment of Alleged Mentally Disordered
Person, 181 Ariz. 290, 292, 889 P.2d 1088, 1090 (1995). We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) § 12-120.24
(2003).
I
¶2 In April 2008, Dr. L filed an application pursuant to
A.R.S. § 36-520 (2009)1 seeking an involuntary mental health
evaluation of a 21-year old male (“Patient”). The superior
court granted the application and ordered inpatient evaluations.
See A.R.S. § 36-529 (2009). Drs. F and H performed the
evaluations, after which Dr. H filed a petition for court-
ordered treatment. See A.R.S. § 36-533 (2009). At the time,
A.R.S. § 36-535(B) (2003) required the petition to be heard
within six days of filing unless Patient requested a
1
We cite the current version of the statutes absent any
material change since the events in question.
2
continuance.2 The court heard in-person testimony from several
lay witnesses and Dr. H. Section 36-539(B) (2003) requires the
testimony of both evaluating physicians. Dr. F, however, was
attending a professional conference on the day of the hearing.
Patient did not agree to continue the hearing, and, over his
objection, Dr. F testified telephonically. The trial judge
found Patient had a mental disorder and was “persistently or
acutely disabled,” see A.R.S. § 36-540(A) (Supp. 2009), and
ordered up to 180 days of inpatient treatment.
¶3 The court of appeals vacated the commitment order,
concluding that “[t]he right to confrontation under procedural
due process is ‘similar’ to the right to confrontation under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution.” In re MH-2008-000867, 222 Ariz. 287, 291 ¶ 17,
213 P.3d 1014, 1018 (App. 2009). The court therefore held that
“absent a showing of true necessity, based on unavailability,
telephonic testimony of a doctor at such a hearing violates the
patient’s rights.” Id. at 292 ¶ 23, 213 P.3d at 1019. Noting
that Dr. F was in the Phoenix metropolitan area at the time of
the hearing and the trial judge had made no findings that
“telephonic testimony was necessary,” id. at ¶ 21, the court of
2
The statute has since been amended to permit the state to
request a continuance of up to three business days. 2009 Ariz.
Sess. Laws ch. 153, § 4.
3
appeals concluded that the order of involuntary commitment could
not stand, id. at 293 ¶ 27, 213 P.3d at 1020.
II
¶4 “[F]or the ordinary citizen, commitment to a mental
hospital produces a massive curtailment of liberty, and in
consequence requires due process protection.” Vitek v. Jones,
445 U.S. 480, 491-92 (1980) (internal quotations and citations
omitted). The question before us is whether the court of
appeals properly concluded that the Due Process Clause of the
Fourteenth Amendment mandates that testimony in involuntary
commitment hearings satisfy the requirements of the Sixth
Amendment Confrontation Clause.3
¶5 The court of appeals applied a two-pronged test
derived from Maryland v. Craig, 497 U.S. 836, 850 (1990), and
held that telephonic testimony may be admitted only when
“‘necessary to further an important public policy and . . . the
reliability of the testimony was otherwise assured.’” In re MH-
2008-000867, 222 Ariz. at 291 ¶ 18, 213 P.3d at 1018 (quoting In
re MH-2004-001987, 211 Ariz. 255, 260 ¶ 21, 120 P.3d 210, 215
(App. 2005)). Craig, however, was a criminal case, in which the
guarantees of the Confrontation Clause of the Sixth Amendment
3
Because Dr. F’s testimony was presented telephonically
during the hearing, this case does not involve, nor does Patient
raise, any hearsay objection. See Ariz. R. Evid. 801(c)
(defining hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing”).
4
expressly apply. See U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .”). Mental
health commitment proceedings, in contrast, are civil actions.
In re MH 2008-001752, 222 Ariz. 567, 569 ¶ 9, 218 P.3d 1024,
1026 (App. 2009) (declaring criminal case precedent “inapposite”
because petitions for involuntary mental health treatment are
civil actions).
¶6 In concluding that a Confrontation Clause analysis was
nonetheless required, the court of appeals cited In re S.B., 639
N.W.2d 78, 83 (Neb. 2002). In re MH-2008-000867, 222 Ariz. at
292 ¶¶ 22-23, 213 P.3d at 1019. As the court of appeals
acknowledged, however, the Nebraska opinion is premised on a
statute affording subjects of commitment hearings confrontation
rights equivalent to those of criminal defendants. Id. at 292
¶ 22 n.4, 213 P.3d at 1019 n.4 (citing Neb. Rev. Stat. § 71-954
(2008)). Arizona has no comparable statute.
¶7 The court of appeals also relied upon In re MH 2004-
001987, 211 Ariz. at 260 ¶ 21, 120 P.3d at 215, for the
proposition that Patient’s due process rights were “similar” to
the Sixth Amendment Confrontation Clause rights of a criminal
defendant. In re MH-2008-000867, 222 Ariz. at 291 ¶ 17, 213
P.3d at 1018; id. at 292 ¶ 22 n.4, 213 P.3d at 1019 n.4. But
although the Supreme Court of the United States has emphasized
5
the need for procedural due process in civil commitment
hearings, see, e.g., Vitek, 445 U.S. at 491-92, neither that
Court nor any other, to our knowledge, has held that the
Confrontation Clause applies to such cases.
¶8 Although civil commitment proceedings pose a potential
loss of liberty, they differ from criminal proceedings in many
important ways. As the Supreme Court has noted, a civil
commitment proceeding should not be constitutionally “equated to
a criminal prosecution” because the state is not acting in a
punitive manner. Addington v. Texas, 441 U.S. 418, 428 (1979).
The patient is provided treatment under terms and conditions
specified by the court, rather than incarcerated or otherwise
punished. A.R.S. § 36-540(A). The patient must be offered “the
least restrictive treatment alternative available.” A.R.S.
§ 36-540(B). And a committed patient also is entitled to
periodic judicial review to show changed circumstances, which
can result in release. A.R.S. § 36-546(C) (2009).
¶9 We do not minimize the importance of the loss of
liberty to an involuntarily committed patient. See Hamdi v.
Rumsfeld, 542 U.S. 507, 529 (2004) (noting that “the most
elemental of liberty interests” is “the interest in being free
from physical detention by one’s own government”). But, rather
than the Confrontation Clause analysis demanded in criminal
proceedings by the Sixth Amendment, the appropriate test to
6
determine whether Fourteenth Amendment procedural due process
has been afforded in this context is the one set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976). Under Mathews, three
factors are considered when determining “the specific dictates
of due process” in a civil proceeding:
First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Id. at 335.
¶10 Although Mathews involved the deprivation of a
property interest, id. at 332, the Supreme Court has repeatedly
applied Mathews in cases involving important liberty interests,
see, e.g., Wilkinson v. Austin, 545 U.S. 209, 225 (2005) (using
Mathews analysis to determine due process required before
assigning an inmate to a high-security facility); Hamdi, 542
U.S. at 528-29 (using Mathews analysis to determine scope of
process due to United States citizens detained as enemy
combatants). Similarly, in determining whether civil mental
health commitment proceedings afford basic Fourteenth Amendment
due process, we must balance the liberty interests of the
patient against the various interests of the state, and consider
whether the procedures used or proposed alternatives will likely
7
lead to more reliable outcomes. See In re W.J.C., 369 N.W.2d
162, 163-64 (Wis. Ct. App. 1985) (applying Mathews analysis to
civil commitment proceedings).
III
¶11 In commitment proceedings, as in other civil cases, we
start from the notion that testimony is ordinarily taken from
witnesses “orally in open court.” Ariz. R. Civ. P. 43(f); see
also A.R.S. § 36-539(D) (Supp. 2009) (providing that “all rules
of evidence and the Arizona rules of civil procedure” are
followed in civil commitment proceedings if not inconsistent
with the statutory commitment procedures). But, as the court of
appeals has noted, a “cluster” of civil rules contemplate the
admission of testimony presented otherwise. See Sabori v. Kuhn,
199 Ariz. 330, 332-33 ¶¶ 11-13, 18 P.3d 124, 126-27 (App. 2001).
When considering telephonic testimony, the initial inquiry
should be whether good cause has been shown for its use. Cf.
Fed. R. Civ. P. 43(a) (providing that testimony may, “for good
cause shown,” be taken “in open court by contemporaneous
transmission from a different location”). Although the superior
court did not make such a finding here, the conflicting
professional obligation of Dr. F and the apparent unwillingness
8
of Patient to continue the hearing to a time when this necessary
witness could be present furnished the requisite good cause.4
¶12 We next consider whether admission of telephonic
testimony comported with due process. As the Court noted in
Mathews, “‘[d]ue process,’ unlike some legal rules, is not a
technical conception with a fixed content unrelated to time,
place and circumstances.” 424 U.S. at 334 (quoting Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961)). Thus, in the
context of an involuntary commitment proceeding, we must
evaluate the individual liberty interest involved, the interests
of the state, and the likely impact of telephonic testimony on
the accuracy and fairness of the process.
¶13 Involuntary commitment involves a significant
curtailment of individual liberty. In circumstances like those
presented here, however, allowing telephonic testimony serves
important governmental interests and does not significantly
increase the risks of an erroneous deprivation. Although Dr. F
was not physically present in the courtroom, he was subject to
full cross-examination. See Goldberg v. Kelly, 397 U.S. 254,
269 (1970) (due process requires opportunity to cross-examine
4
In determining whether good cause has been demonstrated,
the court may consider whether the hearing can conveniently be
continued to allow in-person testimony. It may also consider
the costs of bringing experts or other witnesses to court,
particularly in those counties in which there are relatively few
mental health professionals available.
9
adverse witnesses “[i]n almost every setting where important
decisions turn on questions of fact”). Dr. F’s report was
provided to Patient in advance of the hearing, and his testimony
largely duplicated that of Dr. H, who was present in the
courtroom. And, given that Patient did not assent to continue
the statutory deadline for the hearing to secure Dr. F’s
appearance, the State’s important interest in protecting Patient
and members of the public from potential physical harm would
have been thwarted had telephonic testimony not been allowed.
IV
¶14 We therefore conclude that the admission of Dr. F’s
telephonic testimony did not deprive Patient of Fourteenth
Amendment procedural due process. We affirm the order of the
superior court and vacate the opinion of the court of appeals.
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Michael D. Ryan, Justice
10
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
11