In Re Jesse M.

170 P.3d 683, 217 Ariz. 74, 516 Ariz. Adv. Rep. 44, 2007 Ariz. App. LEXIS 209
CourtCourt of Appeals of Arizona
DecidedNovember 8, 2007
Docket1 CA-MH 07-0002
StatusPublished
Cited by32 cases

This text of 170 P.3d 683 (In Re Jesse M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Jesse M., 170 P.3d 683, 217 Ariz. 74, 516 Ariz. Adv. Rep. 44, 2007 Ariz. App. LEXIS 209 (Ark. Ct. App. 2007).

Opinion

OPINION

PORTLEY, Judge.

¶ 1 Jesse challenges the order involuntarily committing him for treatment based on the superior court’s determination that he suffered from a serious mental disorder and needed in-patient treatment. Specifically, he contends the court erred when it refused to allow him to represent himself at the involuntary commitment hearing and when the court directed the court reporter to stop transcribing the proceedings.

FACTUAL 1 AND PROCEDURAL BACKGROUND

¶ 2 Jesse was arrested on October 5, 2006, for allegedly threatening his parents and was psyehiatrically evaluated in jail. The next day an application for involuntary evaluation was filed alleging that he had a mental disorder and was a danger to others. The superior court signed an order for custodial evaluation on October 11,2006.

¶3 After the evaluation, a petition for court-ordered treatment was filed with the evaluations by two psychiatrists. The court set a hearing and appointed the public defender to represent Jesse. The notice of hearing advised Jesse the court would hold the hearing on October 24, 2006, to determine whether he should undergo treatment. The notice also outlined his rights which, in part, included the right to appear, to reply to the allegations, “to bring in witnesses, including an independent mental health evaluator (which the Court will appoint for qualified persons), and to be represented by an attorney.”

¶4 The hearing was rescheduled after Jesse requested an independent evaluator. At the start of the hearing, Jesse requested a continuance to consult with private counsel or, alternatively, to represent himself. The continuance was granted over the State’s objection.

¶ 5 One week later, Jesse, at the start of the hearing, asked to represent himself, and, *76 when that was denied, requested a continuance. Specifically, he told the court that because he had been unable to contact a lawyer after the prior continuance he wanted to represent himself. He noted that “I was told at the beginning that I was able to represent myself. And I can’t find out why ... that has been changed.” The court advised Jesse that his attorney was “an experienced attorney [who] knows what she’s doing. You need her help.” The court also stated “you’re not capable of [representing yourself]. You’re not experienced. You don’t know what you’re doing.”

¶ 6 Just before the first witness was called, Jesse continued to object that the hearing was going forward by saying, “[t]his is totally unfair. This is a set up. This is crooked.” The court then directed the court reporter “not to take down any additional comments made by [Jesse]. He’s allowed to testify and he’ll be given that opportunity.”

¶ 7 The hearing proceeded, and Jesse, through counsel, cross-examined the State’s five witnesses. Jesse made a statement to the court, and published family photographs and his writings. The court then found that Jesse suffered from schizoaffective disorder, a mental disorder, that he was persistently and acutely disabled and that he needed treatment. Jesse was involuntarily committed for inpatient and outpatient treatment. He filed an appeal, and we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-2101 (2003) and 36-546.01 (2003).

DISCUSSION

¶ 8 The issue is whether Jesse can waive his right to counsel and represent himself. We review this question of law de novo because it involves the interpretation and application of a statute. MH 2006-000749, 214 Ariz. at 321, ¶ 13, 152 P.3d at 1204.

¶ 9 An involuntary commitment hearing is a civil proceeding that can result in “a serious deprivation of liberty.” In re MH 2006-000028, 214 Ariz. 246, 248, ¶ 10, 150 P.3d 1267, 1269 (App.2007) (quoting In re Coconino County No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995)). As a result, the proposed patient must be afforded due process protection. Id. (citing In re Maricopa County Cause No. MH-90-00566, 173 Ariz. 177, 182, 840 P.2d 1042, 1047 (App.1992)). “Due process, in other words, requires that [the patient] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.” Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). See generally H.H. Henry, Annotation, Right to Counsel in Insanity or Incompetency Adjudication Proceedings, 87 A.L.R.2d 950 (1963).

¶ 10 Arizona’s legislative scheme fulfills the due process requirements. Specifically, A.R.S. § 36-539(13) (2003) ensures that due process in involuntary commitment proceedings is met by requiring that the “patient and his attorney shall be present at all hearings and the patient’s attorney may subpoena and cross-examine witnesses and present evidence.” Arizona has long provided the right to counsel for a person facing an involuntary commitment. As early as 1928, state law provided that:

The judge of the superior court, upon complaint under oath, setting forth that a person by reason of insanity is dangerous being at large, shall cause such person to be brought before him for hearing and examination, and in open court, inform him of the charge and of his rights to make a defense thereto, to secure witnesses and be represented by counsel. If no counsel appear for such person, the court shall appoint counsel to represent him.

Ariz. Rev.Code § 1769 (1928).

¶ 11 The current statutory scheme continues the requirement that a person facing an involuntary commitment hearing has a right to counsel. Section 36-528 provides that a person facing emergency detention for mental health treatment “shall be informed of his rights ... including the right to consult an attorney. He shall be advised that if he cannot employ an attorney, the court will appoint one for him.” A.R.S. § 36-528(D) (2003). Moreover, the provision provides that if “a petition for evaluation is filed, the court will appoint the person an attorney to *77 consult with and, if he cannot employ his own counsel, to represent him.” Id.

¶ 12 Section 36-536 provides that before a hearing for court-ordered treatment can occur, the patient must receive a copy of the petition, the supporting affidavits, “and the notice of the hearing,” and the court shall advise the patient “of his right to consult counsel.” A.R.S. § 36~536(A) (2003). “If the patient has not employed counsel, counsel shall be appointed by the court----” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
170 P.3d 683, 217 Ariz. 74, 516 Ariz. Adv. Rep. 44, 2007 Ariz. App. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jesse-m-arizctapp-2007.