Anthony Garcia v. Hon. butler/state

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ANTHONY GARCIA,
Petitioner,

v.

HON. MICHAEL J. BUTLER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent Judge,

STATE OF ARIZONA, BY AND THROUGH THE PIMA COUNTY ATTORNEY,
Real Party in Interest.

No. CR-19-0298-PR
Filed May 26, 2021

Special Action from the Superior Court in Pima County
The Honorable Michael J. Butler, Judge
No. CR20184269-001
VACATED AND REMANDED

Opinion of the Court of Appeals, Division Two
247 Ariz. 366 (App. 2019)
VACATED

COUNSEL:

Joel Feinman, Pima County Public Defender, Lisa M. Surhio (argued),
Deputy Public Defender, Tucson, Attorneys for Anthony Garcia

Laura Conover, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, Attorneys for Real Party in Interest State of
Arizona

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

BOLICK, LOPEZ, and MONTGOMERY joined. ∗

JUSTICE BEENE, Opinion of the Court:

¶1 Arizona statutes set forth the procedure for determining
whether an individual is a sexually violent person (“SVP”). See A.R.S.
§§ 36-3701, -3707. In this Opinion, we address whether a trial court has
discretion to deny an SVP screening when the state requests one under
A.R.S. § 13-4518(A). Because we hold that the court has discretion to deny
a screening, we vacate the trial court’s order declining to exercise that
discretion and remand for that court to decide whether a screening should
occur.

BACKGROUND

¶2 In October 2018, the State charged Anthony Garcia with one
count of sexual conduct with a minor. See A.R.S. § 13-1405(A). Garcia
moved for a competency examination pursuant to Arizona Rule of Criminal
Procedure (“Rule”) 11.2, and after a hearing, the trial court found Garcia
not competent and not restorable (“NCNR”). 1

¶3 The State requested an SVP screening pursuant to
§ 13-4518(A), arguing that the procedure was warranted because Garcia (1)
was found NCNR and (2) was charged with a qualifying sexually violent

∗
Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this Opinion and did not
take part in its drafting.

1 We cite the current version of statutes and rules unless
substantive changes have occurred since the events in question. This Court
has twice amended Rule 11.5 since the indictment in this case. Because the
changes are substantive, compare Ariz. R. Crim. P. 11.5(b)(3) (2018) (not
distinguishing between the superior and limited jurisdiction courts with
regards to defendants that are found incompetent and not restorable), with
Ariz. R. Crim. P. 11.5(b)(3) (2020) (providing separate directives for superior
and limited jurisdiction courts), we cite the version of Rule 11.5 in place at
the time of Garcia’s alleged conduct. Rule 11.2 has not been changed since
the events in question, so we cite the current version.
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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

offense. In response, Garcia argued that § 13-4518 did not require a
screening and it would be an abuse of discretion to order one where the
record lacked substantial evidence to support the order. Specifically, he
argued neither the doctors’ diagnoses from the Rule 11 proceeding nor any
other records pertaining to him resulted in a diagnosis of a qualifying
mental disorder as required by § 36-3701(7).

¶4 The trial court held a hearing regarding the State’s request.
At the hearing, Garcia conceded that the State had met the two elements of
§ 13-4518(A): that the report concluded there was no substantial probability
the defendant would regain competency in twenty-one months and that the
defendant was charged with or was convicted of or found guilty except
insane for a sexually violent offense. However, Garcia argued that this
alone did not require the court to grant the State’s request for an SVP
screening. The State conceded that no evidence showed Garcia had a
mental disorder making it likely he would commit sexually violent acts
because he had not been evaluated for one, but nonetheless argued it was
still entitled to the screening.

¶5 The trial court ordered the screening, finding it was
undisputed that Garcia was NCNR and that he was charged with a sexually
violent offense as required by § 13-4518(A). It ruled the State was entitled
to a screening because the State made a prima facie showing that
§ 13-4518(A)’s two requirements were met. Garcia requested a stay, which
the court denied, and Garcia petitioned the court of appeals for special
action.

¶6 In a divided opinion, the court of appeals accepted
jurisdiction but denied relief. Garcia v. Butler, 247 Ariz. 366, 367 ¶ 1 (App.
2019). The majority held that the trial court had no discretion to deny the
State’s request for an SVP screening when the § 13-4518(A) requirements
were met. Id. The dissenting judge, however, concluded that § 13-4518(A)
“addresses the circumstances under which the state possesses the discretion
to seek a screening,” while § 13-4518(B) “unambiguously establishes the
court’s authority to deny the screening.” Id. at 372–73 ¶¶ 24–25
(Eckerstrom, J., dissenting). The dissent went on to state that the majority’s
reading of § 13-4518 “violates basic due process and risks rendering the
statute unconstitutional.” Id. at 375 ¶ 39.

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

¶7 We granted review because this is a matter of first impression
and of statewide importance. We have jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution.

DISCUSSION

¶8 Since 1995, Arizona’s SVP Act has provided procedures for
identifying, evaluating, and involuntarily committing SVPs. A.R.S.
§§ 36-3701 to -3717; In re Leon G., 204 Ariz. 15, 19 ¶ 10 n.4 (2002). The Act
defines an SVP as any person who: (1) “[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 (2) “[h]as a mental disorder that makes the person likely to engage in
acts of sexual violence.” § 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 acts to such a degree as to render
the person a danger to the health and safety of others.” § 36-3701(5).

¶9 In 2017, the Arizona Legislature enacted A.R.S. § 13-4518,
which provides:

A. If the county attorney receives a report that
determines a defendant is incompetent to stand
trial, the county attorney may request that the
defendant be screened to determine if the
defendant may be a sexually violent person, if
both:

1. The report concludes that there is no
substantial probability that the defendant will
regain competency within twenty-one months
after the date of the original finding of
incompetency.

2. The defendant is charged with or has ever
been convicted of or found guilty except insane
for a sexually violent offense as defined
in § 36-3701.

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

B. If the court orders a screening to determine if
the defendant may be a sexually violent person,
both of the following apply:

1. The court shall appoint a competent
professional as defined in § 36-3701 to conduct
the screening and submit a report to the court
and the parties within thirty days after the
appointment.

2. The criminal case may not be dismissed until
the competent professional’s report is provided
to the court and the parties and a hearing is held
pursuant to subsection C of this section or the
county attorney files a petition pursuant
to § 36-3704.

¶10 Garcia argues: (1) § 13-4518(B) gives trial courts discretion to
deny the State’s request for an SVP screening; (2) interpreting § 13-4518(B)
to deny trial courts discretion would violate due process; and (3) the court
abused its discretion here by failing to exercise it. Although the court of
appeals’ majority opinion did not address Garcia’s due process arguments
because it considered them insufficiently raised and developed in the trial
court and court of appeals, Garcia, 247 Ariz. at 371–72 ¶¶ 19–20 & n.5, we
have discretion to address a constitutional issue raised for the first time on
appeal, Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987). Exercising that
discretion, we address the due process issue because it is one of first
impression, of statewide concern, and of constitutional dimension, Dombey
v. Phx. Newspapers, Inc., 150 Ariz. 476, 482 (1986); there are no facts at issue,
Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104
(1984); and we “construe statutes, when possible, to avoid constitutional
difficulties,” State v. Gomez, 212 Ariz. 55, 60 ¶ 28 (2006).

¶11 We review the interpretation of statutes de novo, Nicaise v.
Sundaram, 245 Ariz. 566, 567 ¶ 6 (2019), and the trial court’s refusal or failure
to exercise discretion for an abuse of discretion, State v. Garza, 192 Ariz. 171,
175 ¶ 16 (1998).

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

I.

¶12 We look first to § 13-4518’s language to determine whether it
gives trial courts discretion to order an SVP screening. When interpreting
a statute, we aim “to give effect to the legislature’s intent.” See Premier
Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 195 ¶ 9 (2016) (quoting Parrot
v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶ 7 (2006)). “A statute’s plain
language best indicates legislative intent, and when the language is clear,
we apply it unless an absurd or unconstitutional result would follow.” Id.
We must “give meaning, if possible, to every word and provision so that no
word or provision is rendered superfluous.” Nicaise, 245 Ariz. at 568 ¶ 11.

¶13 The plain language of § 13-4518 compels the conclusion that
the trial court has discretion to order an SVP screening. Subsection (A) sets
forth the circumstances under which the state may request a screening: “[i]f
the county attorney receives a report that determines a defendant is
incompetent to stand trial, the county attorney may request that the
defendant be screened to determine if the defendant may be a sexually
violent person . . . .” § 13-4518(A). Generally, the use of “may” indicates
permissive intent and a grant of discretion. Democratic Party of Pima Cnty.
v. Ford, 228 Ariz. 545, 548 ¶ 9 (App. 2012); State v. Lewis, 224 Ariz. 512, 515
¶ 17 (App. 2010) (“A general principle of statutory construction is that the
use of the word ‘may’ generally indicates a permissive provision . . . .”).
Similarly, the word “request” conveys asking for a privilege and does not
convey an entitlement. See Request, The American Heritage Dictionary (5th
ed. 2011) (definition of “request” includes “to express a desire for,
especially politely; ask for”). The state’s discretion, however, can be
exercised only if two circumstances exist: (1) the report concludes the
defendant is NCNR, and (2) the defendant is “charged with or has ever been
convicted of or found guilty except insane for a sexually violent offense” as
defined by statute. § 13-4518(A)(1)–(2). Consequently, subsection (A) only
addresses the circumstances in which the state may seek a screening and
concomitantly does not contain any language that limits the authority of the
court to grant or deny the state’s request.

¶14 If the state requests a screening under subsection (A), it falls
to the trial court to determine whether to order the screening. The trial
court’s authority to act on the state’s request is articulated in subsection
(B)(1)–(2). See § 13-4518(B) (“If the court orders a screening to determine if

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

the defendant may be a sexually violent person . . . .” (emphasis added));
see also If, The American Heritage Dictionary (5th ed. 2011) (2017)
(definitions of “if” include “in the event that” and “on the condition that”).
The word “if” implies conditionality. See, e.g., MidAmerica Constr. Mgmt. v.
Mastec N. Am., Inc., 436 F.3d 1257, 1263 (10th Cir. 2006) (explaining that the
word “if” is “indicative of the creation of a condition precedent” (citing
Black’s Law Dictionary (8th ed. 2004))). The legislature’s use of conditional
language in subsection (B) establishes the trial court’s authority to deny the
state’s request for a screening; the use of the word “if” indicates that the
remainder of the subsection only applies under the condition that the trial
court has chosen to act, necessarily establishing the court’s discretion to not
act. Subsection (B) does not limit a court’s discretion whether to grant or
deny the state’s request for a screening.

¶15 Moreover, the legislature’s use of mandatory language in
§ 13-4518(B) further supports this interpretation. After the trial court
determines that an SVP screening is warranted under subsection (A), the
language in subsection (B) divests it of any further discretion regarding the
screening of the defendant. See § 13-4518(B)(1)–(2) (“The court shall appoint
a competent professional . . . to conduct the screening . . . . The criminal case
may not be dismissed until the competent professional’s report is provided
to the court . . . .” (emphasis added)); see also Ross v. Blake, 136 S. Ct. 1850,
1856 (2016) (characterizing “shall” and “may not” as mandatory); State ex
rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 132 ¶ 19 (2020) (“The term
‘shall’ is usually mandatory.”).

¶16 The legislature’s use of restrictive language in one section of
the statute but not in the other section indicates that it intended the
restriction to apply only where it was designated. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (quoting United States v.
Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))); see also Sempre Ltd. P’ship v.
Maricopa County, 225 Ariz. 106, 109 ¶ 11 (App. 2010) (“When the Legislature
has used both ‘may’ and ‘shall’ in the same paragraph of a statute, we infer
that the Legislature acknowledged the difference and intended each word
to carry its ordinary meaning.” (quoting HCZ Constr., Inc. v. First Franklin
Fin. Corp., 199 Ariz. 361, 365 ¶ 15 (App. 2001))). Because subsection (B) uses

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

permissive language to grant the court discretion to act on the state’s
request for a screening, and because subsections (B)(1)–(2) use mandatory
language to set forth what the court must do if it grants the screening, we
are persuaded that § 13-4518’s plain language gives the trial court
discretion when the state requests an SVP screening.

¶17 An examination of Arizona’s civil commitment statutes also
supports this conclusion. See Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7
(2017) (“In construing a specific provision, we look to the statute as a whole
and we may also consider statutes that are in pari materia—of the same
subject or general purpose—for guidance and to give effect to all of the
provisions involved.”). Our state’s civil commitment process requires that
any decision to deprive patients of their liberty must be made by a neutral
arbiter who, after reviewing the information contained in a petition for
evaluation, determines whether additional mental health services are
warranted. See A.R.S. §§ 36-520 to -529; see also Addington v. Texas, 441 U.S.
418, 425 (1979) (“[C]ivil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protections.”).
As the dissenting judge correctly noted, “[t]he core features of [the] civil
scheme, which are designed to provide due process, should apply no less
to a patient whose mental defects have been identified through an initial
criminal process.” Garcia, 247 Ariz. at 375 ¶ 38 (Eckerstrom, J., dissenting).

¶18 Even if § 13-4518 was ambiguous, secondary principles of
construction support our interpretation. See Rosas v. Ariz. Dep’t of Econ. Sec.,
249 Ariz. 26, 28 ¶ 13 (2020) (“If the statute’s text yields different reasonable
meanings, we consider secondary interpretation methods . . . .”). This
interpretation avoids constitutional difficulties, and when the relevant text
allows, we construe statutes to comply with constitutional requirements.
See Piccioli v. City of Phoenix, 249 Ariz. 113, 118 ¶ 15 (2020) (stating that
secondary interpretive principles include the effects and consequences of
different interpretations); Gomez, 212 Ariz. at 60 ¶ 28.

¶19 Providing the state with complete discretion regarding
whether to request a screening once the statutory conditions are met while
depriving the trial court of any oversight in the exercise of that discretion
would violate basic due process principles by depriving a defendant of a
neutral arbitrator. See Ward v. Vill. of Monroeville, 409 U.S. 57, 61–62 (1972)
(due process requires “a neutral and detached judge in the first instance”);

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

Horne v. Polk, 242 Ariz. 226, 231 ¶ 17 (2017) (“The right to a neutral
adjudicator has long been recognized as a component of a fair process. One
cannot both participate in a case (for instance, as a prosecutor) and then
decide the case.”). For this additional reason, we decline to interpret
§ 13-4518 as urged by the State.

¶20 In sum, § 13-4518’s plain language provides the trial court
with discretion to grant or deny the state’s SVP screening request.

II.

¶21 Having determined that trial courts have discretion to deny
an SVP screening, we must determine whether the court here abused that
discretion by ordering a screening. We conclude it did.

¶22 As previously noted, the State requested an SVP screening
pursuant to § 13-4518(A). The State asked the court to order Garcia to
submit to a screening because both criteria in § 13-4518(A) were established.
In response, Garcia argued that § 13-4518 did not require a screening, and
it would be an abuse of discretion to order one where the record lacked
substantial evidence to support the order.

¶23 After a hearing on the State’s request, the trial court ordered
Garcia to be evaluated pursuant to § 13-4518. It ruled that because the two
requirements in § 13-4518(A) were met, the State was entitled to the
screening. An examination of the record reveals that the trial court believed
it had no discretion to deny the State’s request once the two § 13-4518(A)
requirements were proven. Because the court erroneously concluded it
lacked discretion to deny the State’s request, its failure to exercise discretion
constitutes legal error and is an abuse of discretion. Garza, 192 Ariz. at 175
¶ 16. For this reason, we vacate the trial court’s screening order and remand
for it to exercise its discretion under § 13-4518(B).

III.

¶24 Our decision to remand raises other issues we must address
to guide the trial court’s determination. The first is identifying the standard
a trial court should apply when considering an SVP screening request.

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

¶25 Although no standard is mentioned in the statute, we
conclude the court must consider whether the state has reasonable grounds
to request an SVP screening. The objective in giving the trial court
discretion under § 13-4518(B) is for the court to act as a neutral check on the
state’s authority and to balance public safety with a defendant’s due
process rights. Cf. United States v. Salerno, 481 U.S. 739, 750–51 (1987)
(stating that an individual’s strong interest in liberty “may, in
circumstances where the government’s interest is sufficiently weighty, be
subordinated to the greater needs of society”). The court must, therefore,
require the state to offer reasonable grounds that indicate an SVP screening
might support the initiation of commitment proceedings under § 36-3704.
The reasonable grounds standard is not novel; courts use it when
determining whether to order a preliminary examination of a defendant’s
competence to stand trial under Rule 11.2, a process that is similar to the
procedure of § 13-4518 because it gives the court discretion to order a
preliminary screening before ordering a full Rule 11 mental competency
examination. See Ariz. R. Crim. P. 11.2(c) (“A court may order the
defendant to undergo a preliminary examination to assist the court in
determining if reasonable grounds exist to order the defendant’s further
examination.” (emphasis added)). Both provisions aim to balance the
state’s interests with the defendant’s rights, and the reasonable grounds
standard allows the court to effectively exercise its discretion.

¶26 Secondly, we must delineate what the trial court should
consider when deciding whether to grant the request for an SVP screening.
Section 13-4518(B)’s language does not limit the factors the trial court may
consider when exercising its discretion. Accordingly, when determining
whether to order an SVP screening, the trial court must evaluate the request
as it would any other motion, relying on the evidence and arguments
proffered by the parties and any other information before it. See
§ 36-3705(D) (stating a court may rely on the SVP petition and any
supplemental evidence provided by the state and the accused when making
its probable cause determination). Information obtained from the Rule 11
proceeding, the nature of the charged offense, and the facts and
circumstances surrounding the case would be instructive for the court
when determining whether to order a screening. This list of factors is not
exhaustive, however, and a court should consider all relevant evidence
when it exercises its discretion under § 13-4518(B) in determining whether
to order a defendant to undergo an SVP screening.

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 ANTHONY GARCIA V. HON. BUTLER/STATE
Opinion of the Court

CONCLUSION

¶27 Section 13-4518’s language and structure indicate, and due
process requires, that trial courts have discretion to deny the state’s SVP
screening request. The trial court in this case erred in not exercising that
discretion. We vacate the trial court’s order, vacate the court of appeals’
opinion, and remand to the trial court to exercise its discretion in deciding
whether to grant the State’s screening request.

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