Wood v. Coconino

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

ANNETTE WOOD, An Adult.

No. 1 CA-CV 22-0710
FILED 05-30-2024

Appeal from the Superior Court in Coconino County
No. S0300GC202200040
The Honorable Stacy Lynn Krueger, Judge

VACATED AND REMANDED

COUNSEL

Coconino County Legal Defender’s Office, Flagstaff
By Joseph Adam Carver
Counsel for Appellant

Coconino County Attorney’s Office, Flagstaff
By William P. Ring, Heather Mosher
Counsel for Appellee

Arizona Attorney General’s Office, Phoenix
By Joshua D. Bendor, Clinten N. Garrett
Counsel for Amicus Curiae

Arizona Center for Law in the Public Interest, Phoenix
By Daniel J. Adelman, Anne C. Ronan, Nicholas Ansel
Counsel for Amicus Curiae

Disability Rights Arizona, Tucson
By Maya S. Abela, Tamaraingsey In
Counsel for Amicus Curiae

WOOD v. COCONINO
Opinion of the Court

OPINION

Vice Chief Judge Randall M. Howe delivered the opinion of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Annette Wood appeals the trial court’s order finding her
incapacitated and placing her under a general guardianship, making her
ineligible to vote under Arizona Constitution Article 7, Section 2(C). Wood
argues that taking away her right to vote violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States
Constitution. She contends that A.R.S. §§ 14-5101(3), -5304, and -5304.02
(collectively, the “guardianship statutes”) violate due process because they
(1) terminate a person’s right to vote upon establishment of a general
guardianship without a determination of the person’s voting capacity and
(2) place the burden on the ward to justify retaining the right to vote. She
also argues that § 14-5304.02 violates the Equal Protection Clause because it
denies a subset of incapacitated persons the opportunity to retain the right
to vote while granting another subset of incapacitated persons the
opportunity to do so.

¶2 We agree that the guardianship statutes on their face violate
due process in two ways. First, they terminate a person’s right to vote upon
establishment of a general guardianship without a determination of the
person’s voting capacity. Second, they impose the burden of showing
voting capacity on the ward. Because the statutes violate due process, we
need not consider Wood’s equal protection argument. See State ex rel.
Brnovich v. City of Phoenix, 249 Ariz. 239, 247 ¶ 31 (2020) (resolving a
constitutional challenge on one ground obviates the need to consider other
grounds). We therefore vacate the trial court’s order and remand for further
proceedings in accordance with our decision.

FACTS AND PROCEDURAL HISTORY

¶3 Sixty-three-year-old Wood lives in an assisted living facility
in Flagstaff. She uses a wheelchair and needs assistance with most of her
daily activities. In May 2022, the Coconino County Public Fiduciary
(“CCPF”) petitioned to appoint a guardian for Wood because of a report

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that Wood had cognitive limitations and that a member of the assisted
living facility’s staff had improperly asked her to sign checks for her care.

¶4 The CCPF alleged that Wood needed a guardian to make
financial and medical decisions for her based on a health professional’s
report and its case administrator’s interviews with Wood and the assisted
living facility’s staff. The health professional diagnosed Wood with
unspecified dementia without behavioral disturbance, severe intellectual
disabilities, and a cognitive communication deficit. The health professional
noted that Wood’s impairments nevertheless do not “affect [her] ability to
receive or evaluate information needed in making or communicating
personal and financial decision[s].” The report also listed Wood’s many
medications.

¶5 During the interviews with the CCPF’s case administrator,
Wood said that she was not currently taking any medication, even though
she was. After the interviews, the case administrator concluded that Wood
suffers from memory loss, impaired judgment, severe symptoms of anxiety
and depression, and lacks insight into her medical condition and treatment.
The CCPF requested that the court place Wood under a general
guardianship because other alternatives, such as a limited guardianship or
obtaining a power of attorney, were inappropriate. It did not, however,
explain why a limited guardianship would be inappropriate.

¶6 The court appointed an investigator who interviewed Wood,
the manager of the assisted living facility, and Wood’s case manager. Wood
was unable to remember her address or whether she had lunch that day.
The investigator also reviewed the health professional’s report and
accompanying documents. The investigator then reported that “Wood is
incapacitated by reason of unspecified dementia without behavioral
disturbance.” The investigator also reported that she suffers “severe
intellectual disabilities” and a “communication deficit to the extent that she
lacks sufficient understanding or capacity to make or communicate
responsible decisions concerning her person.” She concluded that Wood
would benefit from having a guardian.

¶7 Wood agreed that she needed a guardian but requested a
limited guardianship, instead of a general guardianship, so that she could
retain her right to vote. The trial court set a hearing under § 14-5304.02 to
determine whether (1) a less restrictive means than a general guardianship
could meet her needs and (2) she was capable of voting.

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¶8 At the hearing, the court followed § 14-5304.02’s requirement
that, when a limited guardian is appointed, Wood had the burden to prove
that she “retain[ed] sufficient understanding to exercise the right to vote.”
Wood testified that she needed a guardian to make her medical decisions.
Asked whether she needed a guardian for any other reason, she responded,
“No.” She also testified she did not need help with her finances. When
asked whether she had trouble with her memory, she answered, “No. [] I’m
fine.” She accurately identified the city she was living in but could not
remember her physical address.

¶9 Wood then testified that she wanted to vote. When asked
about how she decided whom to vote for, she responded “I pay attention
. . . as to how they are on TV and everything and I decide.” She added that
although she talks to other people when deciding whom to vote for, she
makes her decision independently. The court asked whether she could
identify the current president and vice president. She was initially unable
to recall the president’s name but remembered his name later during the
hearing. When asked when she intended to vote next, she stated, “Probably
around the 6th, I think. I’m not actually sure.” Finally, the court asked her
to describe the process that she went through to vote by mail. She said, “Oh,
they just send it to me and I fill it out and put it in the mailbox.” Wood
presented no other evidence. The CCPF presented no new evidence and
relied on the evidence submitted with its petition.

¶10 The trial court found that Wood’s needs made a limited
guardianship inappropriate and placed her under a general guardianship.
The court alternatively ruled that “even if the [c]ourt had considered a
limited [g]uardianship based on her need level, the [c]ourt does not find by
clear and convincing evidence that she has—that she retains sufficient
understanding to be able to vote.” The court applied its own understanding
of the phrase “sufficient understanding to exercise the right to vote,”
acknowledging that it lacked appellate court guidance on the phrase’s
meaning. Wood timely appealed. This court has jurisdiction under A.R.S.
§ 12-2101(A)(9).

DISCUSSION

¶11 Wood challenges the general guardianship order only to the
extent that it terminated her right to vote. She argues that Arizona’s
disenfranchisement of those under a general guardianship violates the Due

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Process Clause.1 This court reviews the constitutionality of a statute de
novo. State v. Arevalo, 249 Ariz. 370, 373 ¶ 9 (2020). Whenever possible, this
court will construe statutes to avoid rendering them unconstitutional.
Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 230 ¶ 25 (2020). But in
reviewing statutes “deny[ing] some residents the right to vote, the general
presumption of constitutionality afforded state statutes . . . [is] not
applicable.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627–28
(1969); see also Gallardo v. State, 236 Ariz. 84, 87 ¶ 9 (2014) (noting that “if a
law burdens fundamental rights . . . any presumption in its favor falls
away”).

I. General Principles

¶12 Arizona’s Probate Code establishes the procedures to
determine whether an individual is incapacitated and needs a guardian. A
court may appoint a general or limited guardian if the court finds by clear
and convincing evidence that (1) “[t]he person for whom a guardian is
sought is incapacitated”; (2) “[t]he appointment is necessary to provide for
the demonstrated needs of the incapacitated person”; and (3) “[t]he
person’s needs cannot be met by less restrictive means, including the use of
appropriate technological assistance.” A.R.S. § 14-5304(B). In placing
persons under a guardianship, the trial court “shall encourage the
development of maximum self-reliance and independence of the
incapacitated person.” A.R.S. § 14-5304(A).

¶13 Arizona law does not define “general guardianship” or
“limited guardianship.” But it defines “[i]ncapacitated person” as

any person who is impaired by reason of mental illness,
mental deficiency, mental disorder, physical illness or
disability, chronic use of drugs, chronic intoxication or other
cause, except minority, to the extent that he lacks sufficient
understanding or capacity to make or communicate
responsible decisions concerning his person. In cases of
limited guardianship only, a person is not deemed an
incapacitated person for purposes of voting if the person files

1 Amicus Curiae Disability Rights Arizona asserts that the
guardianship statutes violate the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act of 1973. These arguments, however,
would expand the issues on appeal to ones not made by either party and
we decline to address them. See Vangilder v. Ariz. Dep’t of Revenue, 252 Ariz.
481, 493 ¶ 46 (2022).

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a petition and has a hearing and the judge determines by clear
and convincing evidence that the person retains sufficient
understanding to exercise the right to vote pursuant to
§ 14-5304.02.

A.R.S. § 14-5101(3). A person is unable to make “responsible decisions
concerning his person” if “the putative ward’s decisionmaking process is
so impaired that he is unable to care for his personal safety or unable to
attend to and provide for such necessities as food, shelter, clothing, and
medical care, without which physical injury or illness may occur.” In re
Guardianship of Reyes, 152 Ariz. 235, 236 (App. 1986) (quoting In re Boyer, 636
P.2d 1085, 1089 (Utah 1981) (internal quotation marks omitted)). The
definition of incapacitated person does not consider a person’s capacity to
vote. See A.R.S. § 14-5101(3); see also In re Guardianship of Reyes, 152 Ariz. at
236 (not listing voting capacity as a consideration in determining whether
a person is incapacitated).

¶14 The court’s finding that a person is incapacitated terminates
that person’s right to vote. The Arizona Constitution provides that “[n]o
person who is adjudicated an incapacitated person shall be qualified to vote at
any election . . . .” Ariz. Const. art. 7, § 2(C) (emphasis added). This is so
regardless whether the person is placed under a general or limited
guardianship. See A.R.S. §§ 16-101(A)(6) (making incapacitated persons
unqualified to register to vote), -165(A)(3) (directing the county recorder to
cancel a person’s voter registration if the person is adjudicated
incapacitated). Under the guardianship statutes, however, a person placed
under a limited guardianship can retain the right to vote “if the person files
a petition, has a hearing and the judge determines by clear and convincing
evidence that the person retains sufficient understanding to exercise the
right to vote.” A.R.S. § 14-5304.02; accord A.R.S. § 14-5101(3). A person
placed under a general guardianship, in contrast, has no such recourse.

II. The Right to Vote

¶15 Wood argues that her procedural due process rights were
violated because the guardianship statutes terminate the right to vote of a
person under a general guardianship without first determining the person’s
voting capacity. This court evaluates procedural due process challenges to
a voting restriction under the framework articulated in Anderson v.
Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992),
known as the “Anderson/Burdick framework.” See Acevedo v. Cook Cnty.
Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (concluding that the
Anderson/Burdick framework “applies to all First and Fourteenth

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Amendment challenges to state election laws”); see also Ariz. Democratic
Party v. Hobbs, 18 F.4th 1179, 1195 (9th Cir. 2021) (similar).

¶16 Under the Anderson/Burdick framework, this court determines
whether a person’s due process rights have been violated by “weigh[ing]
‘the character and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate’ against ‘the precise interests put forward by the State as
justifications for the burden imposed by its rule,’ taking into consideration
‘the extent to which those interests make it necessary to burden the
plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at
789). Laws that impose a “severe” burden on voting rights must meet strict
scrutiny. Id. “Lesser burdens, however, trigger less exacting review, and a
State’s ‘important regulatory interests’ will usually be enough to justify
‘reasonable, nondiscriminatory restrictions.’” Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997) (quoting Burdick, 504 U.S. at 434).

¶17 Terminating the right to vote is the most severe burden on
that right. The process required to place a person under a guardianship
does not involve an individualized inquiry into the person’s voting
capacity. By denying the right to vote to persons under a general
guardianship, the statutes impose a severe burden on their right to vote.
The guardianship statutes are therefore subject to strict scrutiny under the
Anderson/Burdick framework.

¶18 To satisfy strict scrutiny, the State must establish both that the
law is narrowly tailored to serve a compelling state interest and that it
employs the “least restrictive means practically available.” Arizonans for
Second Chances, Rehab. & Pub. Safety v. Hobbs, 249 Ariz. 396, 409 ¶ 42, 417
¶ 82 (2020) (quoting Bernal v. Fainter, 467 U.S. 216, 227 (1984)). A statute is
not “narrowly tailored” unless it “targets” the “exact source of the evil it
seeks to remedy” without “eliminat[ing] . . . more than” necessary to
achieve that goal. Frisby v. Schultz, 487 U.S. 474, 485 (1988) (quoting City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808–10 (1984)).
If, in other words, “there are other, reasonable ways to achieve” the State’s
legitimate goals “with a lesser burden on constitutionally protected activity,
a State may not choose the way of greater interference.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972); see also Second Chances, 249 Ariz. at 417 ¶ 82 (“[S]trict
scrutiny requires the least restrictive means among available, effective
alternatives.” (citation omitted)).

¶19 Neither the CCPF nor Amicus Curiae the Arizona Attorney
General identify any interest, compelling or otherwise, served by

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terminating the right to vote of persons subject to a general guardianship
without first determining the person’s voting capacity. Arizona
Constitution Article 7, Section 2(C) does disqualify “an incapacitated
person” from voting, which can be read as a measure to prevent from
voting those who have no capacity to vote. Assuming this is the State’s
interest, terminating the right to vote of persons under a general
guardianship without providing a process to determine their capacity to
vote is not narrowly tailored to serve that interest, nor the least restrictive
means of achieving that interest. That is because a person may be placed
under a general guardianship for a mental illness or other reason that has
nothing to do with the person’s capacity to vote. See In re Sherrill’s Estate, 92
Ariz. 39, 43 (1962) (“That one is under guardianship does not prevent him
from performing the acts of which he is in fact capable.”); see also Doe v.
Rowe, 156 F. Supp. 2d 35, 55–56 (D. Me. 2001) (“[U]nder any reasonable
definition, ‘mental illness’ cannot serve as a proxy for mental incapacity
with regards to voting.”). The guardianship statutes are thus not narrowly
tailored, nor the least restrictive means of achieving the State’s interest: they
target all wards, not just those who may lack voting capacity.

¶20 The Legislature has recognized that placing a person in a
guardianship does not necessarily deprive the person of all capacities.
Under § 14-5304.01, a guardianship does not suspend a ward’s privilege to
drive unless a court finds that the incapacity warranting the guardianship
affects a ward’s capacity to drive safely. This same procedure could easily
be applied to determining whether the incapacity warranting the
guardianship affects the ward’s capacity to vote. See United States v. Playboy
Ent. Grp., Inc., 529 U.S. 803, 815 (2000) (“[I]f a less restrictive means is
available for the Government to achieve its goals, the Government must use
it.”). Therefore, terminating the right to vote without a hearing to determine
the person’s voting capacity is not the least restrictive means of achieving
the State’s goal. Thus, to the extent that the guardianship statutes terminate
a person’s right to vote without first providing a hearing to determine that
person’s capacity to vote, they violate due process.

III. Placement of the Burden of Proof

¶21 Although the court held a hearing before terminating Wood’s
right to vote, her due process rights were still violated because the statutes
placed the burden on her to show voting capacity. Under § 14-5304.02, “[a]
person for whom a limited guardian is appointed shall retain the right to
vote if the person files a petition, has a hearing and the judge determines
by clear and convincing evidence that the person retains sufficient
understanding to exercise the right to vote.” Accord A.R.S. § 14-5101(3).

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¶22 Section 14-5304.02 does not comport with due process to the
extent that it places the burden on the ward to show by clear and convincing
evidence that he or she retains sufficient understanding to exercise the right
to vote. Placing such burden on the ward severely burdens the ward’s right
to vote. See Burdick, 504 U.S. at 434. As a result, § 14-5304.02 is subject to
strict scrutiny under the Anderson/Burdick framework. Again, neither the
CCPF nor the Attorney General identify any interest served by placing the
burden on the ward to show voting capacity. Assuming the State’s interest
is to prevent those not capable of voting from voting, see supra ¶ 19, placing
the burden of proof on the ward is not the least restrictive means of
achieving that goal, see Second Chances, 249 Ariz. at 417 ¶ 82. This is so
because a less restrictive means exists: requiring the petitioner seeking the
guardianship to prove that the alleged incapacitated person lacks the
capacity to vote.

¶23 Generally, the party seeking to interfere with a fundamental
right carries the burden of showing that the interference is warranted.
Troxel v. Granville, 530 U.S. 57, 69–70 (2000) (ruling that placing on parents
the burden “of disproving” that grandparent visitation would be in the
children’s best interests violated due process). Here, placing the burden on
the petitioner seeking the guardianship to show that a person subject to
guardianship proceedings lacks the capacity to vote comports with due
process and serves the State’s interest by ensuring that the State is
preventing from voting only those who lack the capacity to vote. Thus, the
petitioner must show that the alleged incapacitated person lacks the
capacity to vote. See id. And because the right to vote is a fundamental right,
Wesberry v. Sanders, 376 U.S. 1, 16 (1964), the petitioner must show that the
alleged incapacitated person lacks the capacity to vote by clear and
convincing evidence, Santosky v. Kramer, 455 U.S. 745, 769 (1982) (holding
that a clear and convincing standard of proof satisfied due process in
terminating parental rights). See also Addington v. Texas, 441 U.S. 418, 433
(1979) (holding that a clear and convincing standard of proof satisfied due
process in civil commitments to mental hospital for an indefinite period).

¶24 The Attorney General argues that placing the burden on the
ward is nonetheless constitutional because only a “modest quantum of
evidence” is necessary to show a sufficient understanding to exercise the
right to vote. This argument misses the point. The degree of proof is
irrelevant because the issue here is whether the ward should bear any
evidentiary burden. As explained supra ¶ 23, due process requires that,
before terminating a person’s fundamental right to vote, the petitioner must
show by clear and convincing evidence that the person lacks the capacity to
vote. Wood was denied due process because § 14-5304.02 places the burden

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of proof on her and not the petitioner. To comply with due process, the
petitioner was required to prove by clear and convincing evidence that
Wood lacked the capacity to vote.

IV. Sufficient Understanding to Exercise the Right to Vote

¶25 Wood argues finally that she was denied due process because,
regardless who bears the burden of proof, the standard she had to meet to
regain her right to vote is vague. A person under a limited guardianship
“shall retain the right to vote” if that person “retains sufficient
understanding to exercise the right to vote.” A.R.S. § 14-5304.02; accord
A.R.S. § 14-5101(3). Wood argues this phrase could be interpreted to mean
that the ward must (1) “show an understanding of the mechanics of voting,
like how to fill out a ballot,” (2) “articulate a rationale for [his or her] voting
choices,” or (3) satisfy both alternatives. The Attorney General argues that
the phrase should be interpreted to require proof that the ward has the
mental capacity to understand the nature and effect of voting.

¶26 This court reviews the interpretation of statutes de novo. City
of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 210 ¶ 10 (2019). “[T]he best
and most reliable index of a statute’s meaning is its language and, when the
language is clear and unequivocal, it is determinative of the statute’s
construction.” State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007) (quoting Deer
Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296 ¶ 8 (2007)).
Statutory phrases must be interpreted “in accordance with their commonly
accepted meanings, ‘unless the legislature has offered its own definition of
the words or it appears from the context that a special meaning was
intended.’” State v. Reynolds, 170 Ariz. 233, 234 (1992) (internal citation
omitted) (quoting Mid Kan. Fed. Sav. & Loan Ass’n of Wichita v. Dynamic Dev.
Corp., 167 Ariz. 122, 128 (1991)). In determining “commonly accepted
meanings,” id., “we may refer to established and widely used dictionaries,”
Special Fund Div. v. Indus. Comm’n, 232 Ariz. 110, 113 ¶ 12 (App. 2013).

¶27 Although the parties and amici curiae believe the phrase
“sufficient understanding to exercise the right to vote” may have multiple
meanings, the critical words are ordinary and have commonly understood
meanings that lead to a single meaning of the phrase. “Voting” means “[t]he
expression of one’s preference or opinion in . . . [an] election by ballot.” Vote,
Black’s Law Dictionary (11th ed. 2019). “Sufficient” means “enough to meet
the needs of a situation or a proposed end.” Sufficient, Merriam-Webster’s
Dictionary, https://www.merriam-webster.com/dictionary/sufficient
(last visited May 16, 2024). And finally, “understanding” means “a mental
grasp,” or “the power of comprehending.” Understanding, Merriam

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-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/
understanding (last visited May 16, 2024). Thus, under the ordinary and
commonly understood meaning of these words, a person retains sufficient
understanding to exercise the right to vote under § 14-5304.02 if that person
has enough comprehension to know that he or she is expressing a
preference on a ballot for a particular candidate for a political office or for
or against a policy measure.

¶28 Admittedly, wisely exercising that right is often difficult and
complex. But the wisdom of a particular vote (or a particular voter) is
subjective and not a condition of the right to vote. If a citizen understands
that by voting he or she is choosing a particular candidate for a particular
office or making a choice on a particular ballot measure, the citizen has the
capacity to vote. This is true even when the citizen is under a guardianship.
Thus, before terminating the right to vote, the petitioner must show and the
court must find by clear and convincing evidence that the alleged
incapacitated person cannot express his or her preference on a ballot.

CONCLUSION

¶29 We vacate and remand for further proceedings consistent
with this opinion. The trial court must reconsider whether Wood can
express her preference on a ballot. The burden of proof lies with the CCPF,
not Wood. The court may hold an additional evidentiary hearing if it finds
it necessary in resolving this question.

AMY M. WOOD • Clerk of the Court
FILED: TM

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