In Re Mh-2008-000867

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