Pinal County Board of Supervisors v. Georgini and T.J.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE PINAL COUNTY BOARD OF SUPERVISORS,
Petitioner,
v.
HON. JOSEPH R. GEORGINI, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF PINAL,
Respondent,
and
T.J.,
Real Party in Interest.
No. 2 CA-SA 2014-0010
Filed September 18, 2014
Special Action Proceeding
Pinal County Cause No. S1100MH201000128
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
M. Lando Voyles, Pinal County Attorney
By Geraldine Roll and Rosemary Gordon-Pánuco,
Deputy County Attorneys, Florence
Counsel for Petitioner
Hernandez Scherb & Hanawalt, P.C., Florence
By Camille Hernandez
and
THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
Paula M. Cook, Interim Pinal County Public Defender
By David T. Wilkison, Deputy Public Defender, Florence
Counsel for Real Party in Interest
OPINION
Presiding Judge Miller authored the opinion of this Court, in which
Chief Judge Eckerstrom and Judge Vásquez concurred.
M I L L E R, Presiding Judge:
¶1 In this special action, the Pinal County Board of
Supervisors challenges the respondent judge’s appointment of the
Pinal County Public Defender’s Office (the PCPD), or any counsel at
public expense, to represent real party in interest T.J. in a proceeding
pursuant to A.R.S. § 13-925, to restore her right to possess firearms.
We accept jurisdiction because the Board has no “equally plain,
speedy, and adequate remedy by appeal,” Ariz. R. P. Spec. Actions
1(a), and because the issue is purely legal, of statewide importance,
and not previously addressed by Arizona courts. See State ex rel.
Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002).
For the following reasons, we grant relief.
Background
¶2 In September 2010, the Pinal County Superior Court
ordered T.J. to undergo combined inpatient and outpatient
psychiatric treatment after finding she was a danger to herself and
persistently or acutely disabled as a result of a mental disorder. The
court appointed the PCPD to represent T.J. in the proceedings for
court-ordered treatment, held pursuant to A.R.S. title 36, chapter 5,
article 5. As a consequence of the court’s findings and treatment
order, T.J. is prohibited from possessing a deadly weapon or
prohibited weapon, including a firearm, unless her “right to possess
a firearm has . . . been restored pursuant to [A.R.S.] § 13-925.” A.R.S.
§§ 13-3101(A)(1),(7), 13-3102(A)(4).
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Opinion of the Court
¶3 T.J. was discharged from treatment by operation of law
in September 2011. See A.R.S. § 36-542(A). In November 2011, the
PCPD filed a petition to restore T.J.’s right to possess firearms
pursuant to § 13-925, using the original mental health case number.
That petition was dismissed without prejudice for unstated reasons;
the following month the PCPD asked the court to appoint an
independent evaluator to provide “appropriate information for
judicial review of [T.J.’s] request to restore her right to possess
firearms.”
¶4 In July 2012, the respondent judge found T.J. indigent
and appointed the PCPD to represent her, “pursuant to Title 36 and
both the Arizona and United States Constitution[s] affording an
indigent Patient counsel in this proceeding.” In September 2012, the
respondent also approved T.J.’s renewed request for an expert’s
evaluation at public expense.
¶5 In April 2013, the PCPD filed a new petition for
restoration of T.J.’s right to possess a firearm; in a reply, the state
objected to the PCPD’s representation of T.J. and argued the petition
“should have been filed as a new civil matter by [T.J.] pro per or her
private attorney, not by the [PCPD].” After considering arguments
on the issue, the respondent judge stayed the § 13-925 proceedings
so the state could challenge the PCPD’s appointment in a petition for
special action. The respondent judge also appointed private counsel
to represent T.J “in any special action proceedings.” The Board has
substituted as petitioner in this court and has adopted positions the
state had asserted before the substitution.1
Discussion
1A “county board of supervisors . . . is ‘the body charged with
establishing, employing and paying the public defender, [and
therefore] appears to be the more appropriate party to complain of
actions by the public defender which might be in excess of his
authority.’” Smith v. Lewis, 157 Ariz. 510, 512, 759 P.2d 1314, 1316
(1988), quoting State v. Evans, 129 Ariz. 153, 154, 629 P.2d 989, 990
(1981) (alteration in Lewis).
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Opinion of the Court
¶6 In Arizona, a person faces criminal liability “by
knowingly . . . [p]ossessing a deadly weapon or prohibited weapon
if such person is a prohibited possessor.” A.R.S. § 13-3102(A)(4). A
prohibited possessor includes “any person . . . [w]ho has been found
to constitute a danger to self or to others or to be persistently or
acutely disabled . . . pursuant to court order under [A.R.S.] § 36-540,
and whose right to possess a firearm has not been restored pursuant
to § 13-925.” 2 § 13-3101(A)(7)(a). Although this prohibition operates
automatically, that is, there is no statutory requirement that the
mental health treatment order address firearms possession, T.J.’s
treatment order advised her of the prohibition.
¶7 Section 13-925 allows a person to petition the court that
ordered her treatment for an order restoring her right to possess a
firearm. § 13-925(A). She is entitled to a hearing, and must “present
psychological or psychiatric evidence in support of the petition.”
§ 13-925(C). She is required to serve the petition on the attorney for
the state who appeared in the underlying case, and “[t]he state shall
provide the court with [her] criminal history records, if any.”
§ 13-925(B), (C). At the hearing, “[t]he court shall receive evidence
on and consider the following before granting or denying the
petition”:
1. The circumstances that resulted in the
person being a prohibited possessor as
defined in § 13-3101[(A)(7)(a)]. . . .
2. The person’s record, including the
person’s mental health record and
criminal history record, if any.
2 Section 36-540 authorizes a court to order involuntary
treatment, including hospitalization, for a person whose “mental
disorder” has caused both of these circumstances. See In re
Commitment of An Alleged Mentally Disordered Pers. MH 91-00558, 175
Ariz. 221, 224-25 & n.5, 854 P.2d 1207, 1210-11 & n.5 (App. 1993).
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Opinion of the Court
3. The person’s reputation based on
character witness statements, testimony
or other character evidence.
4. Whether the person is a danger to self or
others, is persistently, acutely or gravely
disabled or whether the circumstances
that led to the original order,
adjudication or finding remain in effect.
5. Any change in the person’s condition or
circumstances that is relevant to the
relief sought.
6. Any other evidence deemed admissible
by the court.
§ 13-925(C).
¶8 To obtain relief, a petitioner must prove by clear and
convincing evidence that she “is not likely to act in a manner that is
dangerous to public safety” and that “[g]ranting the requested relief
is not contrary to the public interest.” § 13-925(D). The court is
required to issue findings of fact and conclusions of law supporting
its ruling, § 13-925(E), and an order granting or denying the petition
may be appealed, A.R.S. § 12-2101(A)(4)(d). If the petition is
granted, “the original [mental health] order, finding or adjudication
is deemed not to have occurred” for the purpose of applying the
prohibited possessor statute. §§ 13-925(F); 13-3101(A)(7)(a).
¶9 In its petition for special action relief, the Board argues
there is no statutory authority “for the Public Defender to provide
representation to indigent persons seeking restoration of their
firearm rights” and “there are no constitutional, due process or other
interests served by appointing counsel at taxpayers’ expense for
indigent persons seeking restoration of their firearm rights.”3
3The record supports the Board’s assertion that the respondent
judge “also considered [whether] court appointed counsel would be
appropriate if the public defender could not statutorily represent
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THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
A. The Absence of Statutory Authority
¶10 The Board points out that § 13-925 contains no express
provision for the appointment of counsel. It maintains statutes that
expressly authorize such appointments “provide guidance on when
the legislature intended that an indigent is entitled to counsel at
taxpayer expense.” The Board also relies on Trebesch v. Superior
Court and other cases for the proposition that “[A.R.S. §] 11-584 is
clear and unambiguous and prohibits public defenders from
defending persons outside the scope of the statute.” 175 Ariz. 284,
288, 855 P.2d 798, 802 (App. 1993).
¶11 T.J. maintains § 11-584(A)(3) authorizes the PCPD’s
appointment. This statute permits a public defender to represent
indigent parties who are “entitled to counsel as a matter of law” in
“[m]ental disorder hearings only if appointed by the court under
title 36, chapter 5.” But chapter 5 in title 36 governs mental health
services and authorizes the appointment of counsel only when (1) a
court grants a petition for a court-ordered, custodial evaluation of a
proposed patient upon finding reasonable cause to believe that he or
she “is, as a result of a mental disorder, a danger to self or others,
[and] has a persistent or acute disability or a grave disability,” 4
A.R.S. § 36-529(A), (B); (2) a patient is detained pursuant to a
petition for court-ordered treatment, A.R.S. § 36-535(A); (3) a patient
is served with a petition for court-ordered treatment, A.R.S. § 36-
536(A); or (4) a patient receiving treatment under a court order
requests release, A.R.S. § 36-546(F). The respondent judge did not
T.J.” Thus, although the Board maintains the respondent judge
“exceeded [his] legal authority” in appointing the PCPD, it also
seeks a broader determination prohibiting the “use of public funds
to provide T.J. with legal representation at taxpayer expense.”
Because special action proceedings encompass issues of prohibition,
as well as issues of certiorari, Ariz. R. P. Spec. Actions 1(a), we
consider both issues in this decision.
4 “‘Mental disorder’ means a substantial disorder of the
person’s emotional processes, thought, cognition or memory. . . .”
A.R.S. § 36-501(24).
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THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
appoint the PCPD under any circumstances authorized under title
36, chapter 5.
¶12 Moreover, we recognize that, as T.J. suggests, a hearing
pursuant to § 13-925 requires consideration of the circumstances that
led to court-ordered mental health treatment and whether those
circumstances “remain in effect,” as well as evidence regarding
“[w]hether the person is a danger to self or others, [or] is
persistently, acutely or gravely disabled.” § 13-925(C)(1), (4). But in
contrast to a “mental disorder” hearing pertaining to the provision
of “Mental Health Services” under title 36, § 13-925 does not require
a determination of whether a person suffers from a mental disorder;
restoration of T.J.’s firearm rights instead depends on whether she
“is not likely to act in a manner that is dangerous to public safety”
and whether eliminating her firearms restriction “is not contrary to
the public interest.” Compare § 13-925(D) with § 36-540(A).
Accordingly, we decline to construe a § 13-925 proceeding as a
“mental disorder hearing” encompassed by the PCPD’s previous,
completed appointment pursuant to § 36-536.
¶13 We nonetheless are unable to resolve, based solely on
statutory analysis, whether the respondent judge abused his
discretion in appointing the PCPD to represent T.J. Although
Trebesch and other cases cited by the Board correctly state the law,
§ 11-584(A)(10) since has been amended to authorize the PCPD to
represent an indigent party “in any other proceeding or
circumstance in which a party is entitled to counsel as a matter of
law” if appointed by the court and approved by the county board of
supervisors. See 2010 Ariz. Sess. Laws, ch. 195, § 1. Because we
assume that § 11-584(A)(10) would encompass the PCPD’s
representation, with Board approval, of those persons entitled to
counsel as a matter of constitutional due process, we must address
whether due process requires the appointment of counsel for an
indigent party in a § 13-925 proceeding.
B. Due Process
¶14 “Procedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause of
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THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
the Fifth or Fourteenth Amendment,” Mathews v. Eldridge, 424 U.S.
319, 332 (1976), but the particular process due “varies in relation to
the interests at stake and the nature of the governmental
proceedings,” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452
U.S. 18, 36-37 (1981). “Liberty interests protected by the Due Process
Clause may arise from the clause itself or state laws.” Wigglesworth
v. Mauldin, 195 Ariz. 432, 435, 990 P.2d 26, 29 (App. 1999).
The Nature of T.J.’s Interest
¶15 Arguing that due process does not require that counsel
be appointed to represent T.J. at public expense, the Board relies on
the “presumption that there is no right to appointed counsel in the
absence of at least a potential deprivation of physical liberty.”
Lassiter, 452 U.S. at 31. The Board maintains “[t]he distinction
between infringement of a fundamental right to personal liberty and
a mere restoration of an interest in property, as is the case here, is
markedly clear.”
¶16 But the presumption identified in Lassiter is not
dispositive. In addressing whether due process requires the
appointment of counsel for an indigent parent in proceedings to
terminate parental rights, the Court in Lassiter approved the
following case-by-case analysis to be conducted, “in the first
instance” by the trial court: The court first “must balance” the three
elements propounded in Mathews—“the private interests at stake,
the government’s interest, and the risk that the procedures used will
lead to erroneous decisions”—“against each other, and then set their
net weight in the scales against the presumption that there is a right
to appointed counsel only where the indigent, if he is unsuccessful,
may lose his personal freedom.” Id. at 27, 31-32; see also State ex rel.
Corbin v. Hovatter, 144 Ariz. 430, 431, 698 P.2d 225, 226 (App. 1985)
(“[u]nless the individual’s interests are strong, the state’s interests
weak, and the risk of error high, it cannot be said that due process
requires the appointment of counsel” for civil litigant).
¶17 Moreover, we agree with the PCPD that T.J.’s interest in
her § 13-925 proceeding does not appear to be a “mere . . . interest in
property.” In District of Columbia v. Heller, the Supreme Court relied
on textual and historical analysis to conclude the Second
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THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
Amendment codified a “pre-existing,” “individual right to keep and
bear arms”; accordingly, the Court invalidated District of Columbia
laws that amounted to “the absolute prohibition of handguns held
and used for self-defense in the home.” 554 U.S. 570, 592, 595, 636
(2008). In McDonald v. City of Chicago, the Court concluded the
“personal right to keep and bear arms for lawful purposes” is
“among those fundamental rights necessary to our system of
ordered liberty” and, therefore, the Second Amendment’s
prohibition against infringement of that right applies equally to the
states.5 561 U.S. 742, ___, , , 130 S. Ct. 3020, 3042, 3044, 3050
(2010). Thus, as the respondent judge observed, it would seem—at
least at first glance—that T.J.’s petition implicates a “Second
Amendment right[] . . . guaranteed under the United States
Constitution.”
¶18 But the Court in Heller also explained,
Like most rights, the right secured by the
Second Amendment is not unlimited. . . .
Although we do not undertake an
exhaustive historical analysis today of the
full scope of the Second Amendment,
nothing in our opinion should be taken to
cast doubt on the longstanding prohibitions
on the possession of firearms by felons and
the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such
as schools and government buildings, or
laws imposing conditions and
5 The Second Amendment right recognized in Heller and
McDonald thus falls within the ambit of the liberty guaranteed by the
Due Process Clause, which “denotes not merely freedom from
bodily restraint but also the right of the individual . . . to marry,
establish a home and bring up children, . . . and generally to enjoy
those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262
U.S. 390, 399 (1923).
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Opinion of the Court
qualifications on the commercial sale of
arms.
554 U.S. at 626-27 (citations omitted). The Court then added, “We
identify these presumptively lawful regulatory measures only as
examples; our list does not purport to be exhaustive.” Id. at 627 n.26.
¶19 Although there have been many post-Heller cases, we
have found little discussion of what due process requires after these
permissible, categorical restrictions are imposed. A few courts have
addressed the process required to suspend firearm rights. For
example, in United States v. Rehlander, the First Circuit Court of
Appeals relied on a due process analysis to reverse the convictions
of two defendants charged with possessing a firearm in violation of
18 U.S.C. § 922(g)(4), which prohibits possession by those
“committed to a mental institution.” 666 F.3d 45, 50 (1st Cir. 2012).
¶20 The defendants in Rehlander had been hospitalized
involuntarily under a Maine statute that “provides for temporary
hospitalization following ex parte procedures—that is to say,
without an adversary proceeding.” Id. at 46-47, citing Me. Rev. Stat.
tit. 34-B, § 3863 (2011). Although the First Circuit previously had
held such hospitalization qualified as a “commit[ment]” subject to
the prohibition in § 922(g)(4), the court in Rehlander reconsidered
and abandoned that decision in light of Heller and pursuant to “the
doctrine of constitutional avoidance.” Id. at 47-48, 50-51, overruling
United States v. Chamberlain, 159 F.3d 656 (1st Cir. 1998). The court
concluded Maine’s ex parte process for a three-day psychiatric
hospitalization was insufficient, under due process principles, to
effect a permanent deprivation of Second Amendment rights. Id. at
48-49. Acknowledging the Supreme Court’s admonition that Heller
“did not undercut traditional restrictions on the possession of arms
by those who were mentally ill,” the First Circuit concluded the
Court also had not intended to “address[] a permanent ex parte
deprivation of its newly recognized constitutional right” without
“further protective procedures or remedies.” Id. Accordingly, the
court held “section 922 should not be read to encompass a
temporary hospitalization attended only by the ex parte procedures”
in Maine’s statute. Id. at 49.
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Opinion of the Court
¶21 This case presents a much different question, because
the mental health order was issued after the opportunity for
adversary proceedings in which T.J. participated. Instead, as the
Board correctly observes, the principal issue here is “restoration” of
her right to possess a firearm. Due process requirements are
triggered by governmental decisions that “deprive” an individual of
liberty or property interests. See U.S. Const., amend. XIV, § 1;
Mathews, 424 U.S. at 332. The government decision that formed the
basis for T.J. being “deprive[d]” of her right to possess firearms was
the September 2010 mental health adjudication and treatment order.
T.J. does not suggest those proceedings failed in any way to comply
with statutory requirements or due process, and no decision in a
§ 13-925 proceeding will cause any further deprivation of that
interest. And T.J. has not argued the Constitution requires an
opportunity to restore liberty interests that already have been
forfeited through a proceeding that fully comports with due process,
nor has she cited any authority suggesting as much. Cf. Rehlander,
666 F.3d at 46, 48-49 & n.4 (in dicta, perceiving no due process
violation in permanent firearms disqualification based on civil
commitment ordered after “traditional adversary proceeding” and
“judicial determination” of both mental illness and dangerousness);
United States v. Marzzarella, 614 F.3d 85, 92 (3d Cir. 2010) (“[T]he
Second Amendment affords no protection for . . . possession [of
firearms] by felons and the mentally ill.”).6
¶22 Nonetheless, “[s]tates may under certain circumstances
create liberty interests” entitled to due process protection, even if
they involve no deprivation of liberty that would “‘give rise to
protection by the Due Process Clause of its own force.’” Wilkinson v.
Austin, 545 U.S. 209, 221-23 (2005), quoting Sandin v. Conner, 515 U.S.
472, 483-84 (1995). For the purposes of our analysis, we conclude
T.J.’s liberty interest arising from § 13-925 is a state interest created
by Arizona law. See State v. Grant, 24 Ariz. App. 201, 202, 537 P.2d
6In the absence of any argument or authority to the contrary,
we assume, without deciding, that T.J. has no liberty interest in a
§ 13-925 proceeding anchored in the Constitution.
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38, 39 (1975) (“Restoration of civil rights is a creature of statute.”),
adopted, 112 Ariz. 270, 540 P.2d 1251 (1975).
Determination of Process Due for Restoration of
Forfeited Rights
¶23 We have found no authority regarding the process that
may be constitutionally required when a person seeks to restore civil
rights that previously have been forfeited in accordance with due
process. But authorities suggest there is only a limited due process
interest in such proceedings. See, e.g., Dist. Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009) (convict “has only a
limited interest in postconviction relief,” having “already been
found guilty at a fair trial”); Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 7, 12 (1979) (no constitutional right to
release on parole, but state-created liberty interest may be “entitled
to some measure of constitutional protection”). We are aware of no
authority, and T.J. has cited none, suggesting that appointed counsel
is required under such circumstances. Cf. Pennsylvania v. Finley, 481
U.S. 551, 556 (1987) (no constitutional right to appointed counsel in
collateral challenge to criminal conviction).
¶24 Although these cases do not address the specific
circumstance here, each of them demonstrates the limited nature of
an expectancy interest in a proceeding to restore liberty that has
already been forfeited in accordance with due process. Each of them
also affords some deference to a state’s promulgated procedures to
protect the limited, state-created interests in proceedings to restore
such rights. See Osborne, 557 U.S. at 69; Finley, 481 U.S. at 559;
Greenholtz, 442 U.S. at 13. Unless the liberty in question involves
freedom from restraint, as it did in Osborne, Finley, and Greenholtz,
greater deference may be owed to state procedures designed to
protect fundamental, but lesser interests. Cf. Lassiter, 452 U.S. at 26
(“[A]s a litigant’s interest in personal liberty diminishes, so does his
right to appointed counsel.”). We conclude T.J. has a limited, state-
created interest in a proceeding to restore her right to possess
firearms.
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The Nature of the Proceeding
¶25 We next consider whether the procedures in § 13-925—
which do not include the appointment of counsel for indigent
petitioners—are “constitutionally sufficient” in light of “the
governmental and private interests that are affected.” Mathews, 424
U.S. at 334. We first examine the statutory procedures in place. T.J.
characterizes the proceedings as “particularly complex,” noting the
requirements that she “present psychological or psychiatric evidence
in support of the petition”—as well as evidence regarding the
circumstances that led to her court-ordered treatment and any
change in those circumstances, her mental health and criminal
history records, and her reputation. She must “prove by clear and
convincing evidence” that she “is not likely to act in a manner that is
dangerous to public safety” and that “[g]ranting the requested relief
is not contrary to the public interest.” § 13-925(C), (D). She points
out she has been diagnosed with a mental illness and suggests
“having counsel present this matter” would not only benefit her, but
would assist the court as well.
¶26 In contrast, the Board argues the “legislature did not
craft an onerous process in A.R.S. § 13-925, but rather a limited
process to protect the public safety and interest.” Thus, according to
the Board,
The statute requires psychological or
psychiatric evidence which could be as
simple as [a] note from an attending doctor
opining that the petitioner’s mental state is
safe and stable such that it would be
appropriate to restore firearm rights. The
petitioner is able to present hearsay
evidence regarding character and
reputation.
¶27 We recognize, as did the Court in Lassiter, that “[e]xpert
medical and psychiatric testimony” is something few untrained
persons “are equipped to understand and fewer still to confute.”
452 U.S. at 30. But the ultimate subject of the hearing—whether T.J.
is unlikely to act in a manner that endangers public safety or
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Opinion of the Court
compromises public interest—“is one as to which [she] must be
uniquely well informed and to which [she] must have given
prolonged thought.” Id. at 29. Although a person “thought to be
suffering from a mental disease or defect” may have “an even
greater need for legal assistance,” the Supreme Court has not
required the appointment of counsel for prisoners facing
involuntary transfer to a mental hospital, even though, unlike T.J.,
they “are threatened with immediate deprivation of liberty.” Vitek
v. Jones, 445 U.S. 480, 495-97 (1980). More important, given the
interests at stake, a person who necessarily takes the position that
she no longer suffers from a disabling mental condition and is now
capable of responsibly possessing a deadly weapon has less need for
assistance than one facing an involuntary commitment petition.
Finally, “the fact that a particular service might be of benefit to an
indigent [party] does not mean that the service is constitutionally
required.” Ross v. Moffitt, 417 U.S. 600, 616 (1974).
¶28 The Supreme Court has acknowledged that, in an
adversary proceeding, “the contest of interests may become
unwholesomely unequal” when only one party is represented by
counsel. Lassiter, 452 U.S. at 28; see also Turner v. Rogers, ___ U.S. ___,
___, 131 S. Ct. 2507, 2519-20 (2011). But in proceedings that are less
adversarial in nature, the Court has observed that “[t]he
introduction of counsel” may “alter significantly the nature of the
proceeding,” particularly when the proceeding is designed to be
“‘predictive and discretionary’ as well as factfinding.” Gagnon v.
Scarpelli, 411 U.S. 778, 787 (1973) (probation and parole revocation
hearings), quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
¶29 As in Gagnon, the role of the decision maker in a
§ 13-925 hearing essentially is predictive and discretionary, and our
review of the statute suggests the legislature did not contemplate a
“full-blown adversary hearing,” United States v. Salerno, 481 U.S. 739,
750 (1987); based on the statute’s language, a § 13-925 hearing might
not be adversarial at all. The statute requires a petitioner to ”present
psychological or psychiatric evidence in support of the petition” and
describes types of evidence the court “shall receive . . . and consider”
before ruling on the petition. § 13-925(C). In contrast, the statute
does not require any similar “present[ation]” of evidence by the
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state; instead, it requires only that the petition “be served on the
attorney for the state who appeared in the underlying case,”
§ 13-925(B), and that “[t]he state . . . provide the court with the
person’s criminal history records, if any,” § 13-925(C). This
language suggests the legislature contemplated a hearing that may
be more investigatory than adversarial in nature, with the court
assuming a “more active role with respect to the course of the
hearing.” See Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L.
Rev. 1267, 1288-89 (1975) (noting benefit of investigatory hearings in
circumstances “where the disadvantages of the presence of counsel
may outweigh the benefits”). 7 Such an approach would seem
appropriate to a § 13-925 hearing, which affords broad discretion to
a court’s predictions about a petitioner’s future conduct. See Gagnon,
411 U.S. at 787.
¶30 Section 13-925 also affords significant procedural
protections, including written findings in support of the decision
and an opportunity for appellate review. §§ 12-2101(A)(4)(d),
13-925(E). Because “[n]o ideal, error-free way . . . has been
developed” to make such subjective, predictive decisions, a § 13-925
proceeding is less likely to be driven by fact-finding and more likely
to be “guided by the practical experience of the actual . . .
decisionmakers in predicting future behavior.” See Greenholtz, 442
U.S. at 13 (parole-release decisions). Under these circumstances, we
cannot say the provision of counsel to indigent petitioners is
necessary to reduce the risk of error. See id. (“[p]rocedures designed
to elicit specific facts . . . not necessarily appropriate” to parole
determination). Apart from the required psychological or
psychiatric evidence8 and the criminal history provided by the state,
the other evidence to be considered by the court does not appear to
7Although more extensive, such a hearing might resemble that
required for a determination of indigency pursuant to Rule 6.4, Ariz.
R. Crim. P., in which the court, rather than the state, makes inquiry
of the evidence and witnesses.
8We express no opinion on whether, as the Board suggests, a
petitioner could satisfy this requirement by submitting documentary
evidence.
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THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
“require either investigation or exposition by counsel.” Gagnon, 411
U.S. at 787.
¶31 The state is not necessarily an opponent in the
proceeding. It also has an interest in protecting the Second
Amendment rights of citizens who are eligible to possess firearms,
which co-exists with a duty to prevent those ineligible to possess
weapons, by virtue of dangerousness resulting from mental illness,
from doing so. Public safety includes citizens whose right to possess
firearms has been suspended due to mental illness. In other words,
appropriate opposition by the state to restoration of the right to
possess a firearm will be in the best interest of a person whose
mental illness would render its possession dangerous to her and
others.
¶32 We also consider the cost of the procedural protections.
Because § 13-925 limits neither the time frame in which a petition
may be filed nor the number of times a petitioner may seek relief,
the costs of providing counsel to all indigent petitioners seeking
§ 13-925 relief could be substantial. Cf. Cal. Welf. & Inst. Code
§ 8103 (person seeking relief from firearms disability, resulting from
custodial placement for dangerousness “may make a single request
for a hearing” during five-year disability period).
¶33 In balancing T.J.’s limited interest in restoring her right
to possess firearms, and the unlikelihood that the provision of
counsel would reduce error in the proceedings, against the state’s
interest in minimizing costs, T.J.’s desire for appointed counsel does
not outweigh the presumption that appointed counsel will be
provided only when personal liberty is at stake. See Lassiter, 452 U.S.
at 26. We conclude § 13-925 provides all the process T.J. is due. See
Finley, 481 U.S. at 558. She is not entitled to appointment of counsel
as a matter of law.
C. The Interests of Justice
¶34 In the alternative, T.J. argues the respondent judge did
not abuse his discretion in appointing the PCPD because
appointment of counsel was warranted by “the interests of justice,”
Ariz. R. Crim. P. 6.1(b), in light of the complexities involved in
16
THE PINAL CNTY. BD. OF SUPERVISORS v. GEORGINI
Opinion of the Court
presenting her case. She maintains the interests of justice would also
be served by her continued representation by the PCPD because of
the PCPD’s familiarity with her proceeding. But to the extent T.J.
relies on Rule 6.1, that rule applies only to a “defendant” in a
“criminal proceeding.”
¶35 We agree with the Board that a proceeding to restore
firearm rights pursuant to § 13-925 is civil in nature,
notwithstanding the statute’s placement in title 13. See Greehling v.
State, 135 Ariz. 498, 499-500, 662 P.2d 1005, 1007 (1982) (motion for
return of property pursuant to A.R.S. § 13-3922 “is civil in nature,”
notwithstanding placement in criminal code, “and an appeal from
an adverse ruling would be governed by the law of civil appeals”).
The civil nature of a § 13-925 proceeding is evinced by the
legislature’s provision for appeal in § 12-2101, which identifies
appealable judgments and orders in civil proceedings.
¶36 Moreover, because T.J. is not “entitled to counsel as a
matter of law,” § 11-584(A)(10), the PCPD is not authorized to
represent her. Of course, a court “has authority to require a lawyer’s
services, even on a pro bono basis, to assist in the administration of
justice.” Scheehle v. Justices of the Supreme Court of the State of Ariz.,
211 Ariz. 282, ¶ 40, 120 P.3d 1092, 1102 (2005). But our supreme
court has held “a county is not liable for fees and disbursements to
counsel assigned to [an indigent party] in the absence of statute
regulating such compensation.” McDaniels v. State, 62 Ariz. 339, 351,
158 P.2d 151, 156 (1945), accord Haralambie v. Pima Cnty., 137 Ariz.
207, 210, 669 P.2d 984, 987 (App. 1983).
Disposition
¶37 For the reasons stated, we accept jurisdiction of this
special action and grant relief to the Board. We conclude the
respondent judge abused his discretion in appointing the PCPD to
represent T.J., who is not entitled to the appointment of counsel as a
matter of law. Accordingly, we direct the respondent judge to
relieve the PCPD of its appointment in this matter.
17