                      SUPREME COURT OF ARIZONA
                              En Banc

                                  )   Arizona Supreme Court
                                  )   No. CV-01-0062-PR
                                  )
 In re the Matter of LEON G.      )   Court of Appeals
                                  )   Division One
                                  )   No. 1 CA-MH 00-0004
                                  )
                                  )   Yuma County Superior
                                  )   Court
                                  )   No. SC98M00050
__________________________________)
                                  )     CONSOLIDATED WITH
                                  )
STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CV-01-0063-SA
          Petitioner,             )
                                  )   Court of Appeals
                  v.              )   Division One
                                  )   No. 1 CA-SA 01-0027
HON. SUSAN A. EHRLICH, HON.       )
CECIL B. PATTERSON, JR. AND HON. )    Maricopa County Superior
JAMES B. SULT, JUDGES OF THE      )   Court
STATE OF ARIZONA, in and for the )    No. CV-MH-99-1189
Arizona Court of Appeals,         )
                                  )
          Respondents,            )
                                  )    O P I N I O N
ERIC WALKER,                      )
                                  )
          Real Party in Interest. )
                                  )
__________________________________)

          Appeal from the Superior Court of Yuma County
                          No. SC98M00050
             The Honorable Kirby D. Kongable, Judge
                             AFFIRMED
_________________________________________________________________

                 Opinion of the Court of Appeals
                           Division One
              199 Ariz. 375, 18 P.3d 169 (App. 2001)
                              VACATED
_________________________________________________________________
Kristi A. Riggins, P.C.                                   Phoenix
     by   Kristi A. Riggins
Attorney for Leon G.
Janet Napolitano, Arizona Attorney General               Phoenix
     by   Randall M. Howe, Chief Counsel,
          Criminal Appeals Section
     and Consuelo M. Ohanesian, Assistant Attorney General
Attorneys for State of Arizona

Quarles & Brady Streich Lang, LLP                         Phoenix
     by   Michael Owen Miller                               Tucson
Attorneys for Amici Curiae Southern Arizona Center Against Sexual
Assault, Center Against Sexual Abuse, and Arizona Voice for
Victims, Inc.

Jamie McAlister Law Offices, LLC                                   Phoenix
     by   Jamie McAlister
Attorney for Amicus Curiae Jamie McAlister

_________________________________________________________________

   Special Action from the Superior Court of Maricopa County
                        No. CV-MH-99-1189
               The Honorable Alan S. Kamin, Judge
                      REVERSED and REMANDED
________________________________________________________________

        Special Action from Order of the Court of Appeals
                           Division One
              JURISDICTION ACCEPTED, RELIEF GRANTED
_________________________________________________________________

Janet Napolitano, Arizona Attorney General               Phoenix
     by   Randall M. Howe, Chief Counsel,
          Criminal Appeals Section
     and Consuelo M. Ohanesian, Assistant Attorney General
Attorneys for State of Arizona

Daphne Budge                                              Phoenix
Attorney for Walker
_________________________________________________________________

McGregor, Vice Chief Justice

¶1         These consolidated actions consider whether Arizona’s

Sexually   Violent   Persons   (SVP)   act,   Arizona   Revised   Statutes

(A.R.S.) sections 36-3701 to 36-3717 (Supp. 2002), comports with

the substantive due process principles the United States Supreme

                                   2
Court outlined in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct.

2072 (1997), and Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867

(2002). We hold that the Arizona SVP act imposes proper procedures

and evidentiary standards and sufficiently narrows the class of

persons   subject       to   commitment   to    assure   compliance      with

constitutional requirements.

                                     I.

¶2           A jury found beyond a reasonable doubt that Leon G.          is

a sexually violent person as defined in A.R.S. section 36-3701.7.

Based on this finding, the trial judge ordered his commitment to

the   Arizona   State    Hospital,   pursuant    to   A.R.S.   section   36-

3707.B.1.1    The Court of Appeals vacated the order of commitment,


      1
          Leon’s case presents two jurisdictional questions for
this court.    First, we must determine whether Leon waived his
substantive due process challenge by not raising it on appeal. When
Leon initially appealed from his commitment order, his appointed
appellate counsel filed an Anders brief that raised no issues on
appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400 (1967). The right to a full review of the record on
appeal when appointed counsel files an Anders brief, attached as it
is to the Sixth Amendment right to counsel in criminal cases, does
not apply in civil proceedings. See, e.g., Ortega v. Holmes, 118
Ariz. 455, 456, 577 P.2d 741, 742 (App. 1978) (prisoner’s
application for voluntary transfer to state hospital). Commitment
proceedings under the SVP act are civil in nature.       Martin v.
Reinstein, 195 Ariz. 293, 307, ¶¶ 39, 41, 987 P.2d 779, 793 (App.
1999). Therefore, the Anders procedure does not apply to persons
committed under the SVP act. Next, we must consider whether Leon’s
release from civil confinement renders his challenge to the SVP act
moot. On September 12, 2002, the Yuma County Superior Court granted
Leon’s petition for permanent release from the Arizona State
Hospital pursuant to A.R.S. § 36-3714.       Because Leon did not
properly preserve his substantive due process challenge and is no
longer confined, it appears that the question is both waived and

                                     3
concluding that the Arizona SVP statute violated his substantive

due process rights under the Fourteenth Amendment of the United

States Constitution.     In re Leon G., 199 Ariz. 375, 381, ¶ 25, 18

P.3d 169, 175 (App. 2001).      We granted the State’s petition for

review pursuant to Arizona Constitution Article VI, Section 5.3,

Arizona Rule of Civil Appellate Procedure 23, and A.R.S. section

12-120.24. After the Court of Appeals issued its decision in In re

Leon G., Walker, who also had been adjudicated an SVP and committed

to the State Hospital, moved for a release on the basis of that

decision. The trial court granted his motion. The State then moved

the Court of Appeals to issue a “blanket stay” of any releases

granted pursuant to the Court of Appeals’ Leon G. decision.        The

Court of Appeals temporarily stayed Walker’s release but denied the

request for a general stay.     After the State filed a petition for

special action in this court, we stayed all pending releases and

accepted   special     action   jurisdiction   pursuant   to   Arizona

Constitution Article VI, Section 5.3, and Arizona Rule of Procedure

for Special Actions 8(b).

¶3         In In re Leon G., 200 Ariz. 298, 26 P.3d 481 (2001)

vacated by Glick v. Arizona, __ U.S. __, 122 S. Ct. 1535 (2002), we



moot.   Generally, this court will not examine waived or moot
questions. An exception exists, however, for issues that are of
great public importance or likely to reoccur. Barrio v. San Manuel
Div. Hosp., 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984); Corbin v.
Rodgers, 53 Ariz. 35, 39, 85 P.2d 59, 61 (1938). This action meets
those exceptional criteria.

                                   4
held that Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072

(1997), did not “impose ‘volitional impairment’ as a separate

requirement for civil commitment statutes.”             In re Leon G., 200

Ariz. at 301, ¶ 10, 26 P.3d at 484.            We explained that the state

satisfies   its   burden   to   show    lack    of   control   if   the   state

establishes beyond a reasonable doubt not only that a person is

dangerous, but also that a mental illness or disorder caused the

dangerousness, making it highly probable that the person will

engage in future acts of sexual violence.            Id. at 302, 306, ¶¶ 12,

13, and 32, 26 P.3d at 485, 489.

¶4          Subsequent to our decision, the United States Supreme

Court revisited Hendricks in Kansas v. Crane, 534 U.S. 407, 122 S.

Ct. 867 (2002).    After deciding Crane, the Court vacated our Leon

G. opinion and remanded the case to this court “for further

consideration in light of Kansas v. Crane.”            Glick v. Arizona, __

U.S. __, 122 S. Ct. 1535 (2002).

                                  II.

¶5          In Kansas v. Hendricks, the United States Supreme Court

considered the constitutionality of the Kansas Sexually Violent

Predator Act (Kansas act) that governs the civil commitment of

sexually violent predators.2           Recognizing that an individual’s


     2
          Kansas permits the state to civilly commit an individual
if a jury determines beyond a reasonable doubt that the person is
a sexually violent predator. Kan. Stat. Ann. § 59-29a07(a) (Supp.
2001). The statute defines a sexually violent predator as “any

                                       5
“liberty interest is not absolute,” the Court explained that

“[s]tates have in certain narrow circumstances provided for the

forcible civil detainment of people who are unable to control their

behavior and who thereby pose a danger to the public health and

safety.”    Hendricks, 521 U.S. at 356-57, 117 S. Ct. at 2079.

¶6          Hendricks describes the “narrow circumstances” in which

states   may   involuntarily     confine   individuals.     First,   “the

confinement [must] take[] place pursuant to proper procedures and

evidentiary standards.”    Id. at 357, 117 S. Ct. at 2080.     Next, the

state must restrict commitment to “a limited subclass of dangerous

persons.”   Id.    In addition, and of central importance here, “[a]

finding of dangerousness, standing alone, is ordinarily not a

sufficient ground upon which to justify indefinite involuntary

commitment.”      Id. at 358, 117 S. Ct. at 2080.         Instead, civil

commitment statutes must “couple[] proof of dangerousness with the

proof of some additional factor, such as a ‘mental illness’ or

‘mental abnormality.’”     Id.    These added statutory requirements,

factors such as mental illness or mental abnormality, “serve to

limit involuntary civil confinement to those who suffer from a


person who has been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in repeat acts of
sexual violence.” Id. § 59-29a02(a). The statute defines mental
abnormality as “a congenital or acquired condition affecting the
emotional or volitional capacity which predisposes the person to
commit sexually violent offenses in a degree constituting such
person a menace to the health and safety of others.” Id. § 59-
29a02(b). The statute does not define “personality disorder.”

                                    6
volitional    impairment   rendering   them   dangerous   beyond   their

control.”    Id.

¶7          The United States Supreme Court revisited Hendricks and

the Kansas act in Kansas v. Crane, addressing mainly the requisite

proof of lack of control needed to satisfy substantive due process.

The Kansas Supreme Court had interpreted Hendricks as mandating “a

finding that the defendant cannot control his dangerous behavior”

and reversed the trial court’s order committing Crane.3            In re

Crane, 7 P.3d 285, 290, 294 (Kan. 2000).       The Supreme Court held

that although Hendricks does not require total or complete lack of

control “there must be proof of serious difficulty in controlling

behavior” in civil commitment proceedings.      Crane, 534 U.S. at __,

122 S. Ct. at 870.    This requisite lack of control, as well as “the

nature of the psychiatric diagnosis, and the severity of the mental

abnormality itself, must be sufficient to distinguish the dangerous

sexual offender whose serious mental illness, abnormality, or

disorder subjects him to civil commitment from the dangerous but

typical recidivist convicted in an ordinary criminal case.”         Id.

¶8           Accordingly, to comport with substantive due process as

articulated in Hendricks and Crane, Arizona’s SVP act must impose

proper procedures and evidentiary standards. Additionally, it must

narrow the class of persons subject to commitment to only those who


     3
          Central to the court’s decision was the fact that Crane
suffered from a personality disorder and the Kansas act neglects to
define personality disorder. In re Crane, 7 P.3d at 290.

                                   7
have “serious difficulty in controlling” their behavior to ensure

the   act    sufficiently   distinguishes   those   subject   to   civil

commitment from the dangerous but typical recidivist.

¶9           We review the validity of a statute de novo and, if

possible, construe it so as to uphold its constitutionality.

Stewart v. Robertson, 45 Ariz. 143, 150-51, 40 P.2d 979, 983

(1935).     We will not overturn an act of the legislature unless we

are “satisfied beyond a reasonable doubt” that the statute fails to

comply with the Constitution.      State v. Gastelum, 75 Ariz. 271,

273, 255 P.2d 203, 204 (1953).

                                  A.

¶10         We first examine the procedures and evidentiary standards

of Arizona’s SVP act.4      The statute defines an SVP as any person

who “[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 who

“[h]as a mental disorder that makes the person likely to engage in

acts of sexual violence.”     A.R.S. § 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


      4
          Arizona’s legislature enacted the Sexually Violent
Persons statute as the “Sexually Violent Predators” act in 1995,
and placed it in Title 13 of the codified statutes, along with the
criminal laws of the state. In 1998, the legislature retitled the
act “Sexually Violent Persons” and moved it to Title 36, which
includes statutory provisions involving public health and safety.
A.R.S. §§ 36-3701 to 36-3717.

                                   8
acts to such a degree as to render the person a danger to the

health and safety of others.”        A.R.S. § 36-3701.5.

¶11          An   agency   with   jurisdiction     over   a   person   whom   it

believes to be an SVP must notify the attorney general or county

attorney of the person’s expected release from custody between

thirty and one hundred eighty days before release.               A.R.S. § 36-

3702.   The agency must provide the attorney general or county

attorney with information about the underlying sexual offense and

the person’s psychiatric condition.          Id.    The attorney general or

county attorney may then file a petition in superior court alleging

that the person is an SVP.        A.R.S. § 36-3704.

¶12          Upon receipt of such petition, the superior court judge

determines whether probable cause exists to believe that the person

is an SVP.    A.R.S. § 36-3705.     The person named in the petition may

request a hearing on the issue of probable cause, at which he or

she may introduce evidence, cross-examine witnesses, and review all

information in the court’s file.       Id.   If the judge determines that

probable cause exists, the judge must order the person to be

detained in a licensed facility under the supervision of the

superintendent of the Arizona State Hospital and must order an

evaluation of the person at the county’s expense.              Id.

¶13          Within one hundred twenty days of the petition, the court

conducts a trial to determine if the person named in the petition




                                      9
is an SVP.5        A.R.S. § 36-3706.     Either party may request a trial by

jury.       Id.     The person named in the petition has a right to

counsel, which the state must provide if the person is indigent.

A.R.S. § 36-3704.C.           In addition, the person has a right to an

evaluation by a competent professional, appointed by the court if

the person is indigent.            A.R.S. § 36-3703.

¶14              The state has the burden of proving beyond a reasonable

doubt that the person meets the statutory definition of an SVP.

A.R.S. § 36-3707.          If the trier of fact finds, beyond a reasonable

doubt, that the person is an SVP, then the court must either

“[c]ommit the SVP to the custody of the department of health

services for placement in a licensed facility” or “[o]rder that the

[SVP]       be    released    to    a   less   restrictive   alternative”   if

appropriate.         Id.     If the SVP is committed, he or she “shall

receive care, supervision or treatment until the person’s mental

disorder has so changed that the person would not be a threat to

public safety if the person was conditionally released to a less

restrictive alternative or was unconditionally discharged.”                 Id.

The SVP must be examined annually to determine whether commitment

remains appropriate.          A.R.S. § 36-3708.      Either the state or the

SVP may petition the court for discharge or conditional release to

        5
          If the person named in the complaint was found
incompetent to stand trial on the sexual offense charges, the court
must determine, beyond a reasonable doubt, that the person
committed the charged offense before turning to the question
whether the person should be committed under the SVP act. A.R.S.
§ 36-3707.D.

                                          10
a     less   restrictive       setting       with    appropriate      treatment    and

supervision.        A.R.S. §§ 36-3709, 36-3714.          Either petition results

in a hearing, at which the SVP may be present and participate, and

the state bears the burden of proving that conditional release or

discharge would be inappropriate.                 Id.

¶15          We     conclude    that     Arizona’s      SVP   act    imposes     proper

procedures      and    evidentiary       standards      in    compliance    with   the

Constitution.         See Vitek v. Jones, 445 U.S. 480, 500, 100 S. Ct.

1254,    1268     (1980)(Powell,       J.,    concurring)(stating         due   process

requires      the     state    to   provide         “qualified      and   independent

assistance” to an inmate whom the state seeks to involuntarily

transfer to a mental hospital);              Addington v. Texas, 441 U.S. 418,

433, 99 S. Ct. 1804, 1813 (1979)(holding states must prove by at

least clear and convincing evidence that an individual should be

involuntarily committed); O’Connor v. Donaldson, 422 U.S. 563, 574-

75, 95 S. Ct. 2486, 2493 (1975)(explaining that even if an initial

confinement “was founded upon a constitutionally adequate basis,”

a state cannot continue to confine that individual “after that

basis no longer exist[s]”); Jackson v. Indiana, 406 U.S. 715, 738,

92 S. Ct. 1845, 1858 (1972) (explaining “due process requires that

the nature and duration of commitment bear some reasonable relation

to the purpose for which the individual is committed”).

                                             B.

¶16          Leon and Walker argue that Arizona’s SVP act lacks any



                                             11
requirement that the state prove an alleged SVP’s mental disorder

causes him or her to have “serious difficulty in controlling

behavior.”     Focusing on the absence of words such as “capacity” or

“control” in Arizona’s definitions of SVP and mental disorder, Leon

and   Walker    argue   we   must   now   declare   Arizona’s   SVP   act

unconstitutional in light of Crane.       They concede that the Arizona

SVP act in its original form might have satisfied the Crane

standard but argue the current version falls short of complying

with Crane.

¶17       When the legislature originally enacted the SVP act, it

used the term mental abnormality rather than mental disorder. The

definition of mental abnormality included the clause “a congenital

or acquired condition that affects the emotional or volitional

capacity of a person.”6      1995 Ariz. Sess. Laws ch. 257 § 7.       The

legislature, however, has since amended the act, and the definition

of mental disorder no longer includes this clause.       This deletion,

argue Leon and Walker, indicates that the legislature did not

intend “serious difficulty in controlling behavior” to be one of

the elements of an involuntary commitment, and, therefore, the act



      6
         As originally enacted, a mental abnormality meant “a
congenital or acquired condition that affects the emotional or
volitional capacity of a person and that predisposes the person to
commit criminal sexual acts to such a degree as to render the
person a menace to the health and safety of others.” 1995 Ariz.
Sess. Laws ch. 257 § 7. This definition is virtually identical to
the Kansas definition of mental abnormality that the United States
Supreme Court upheld in Hendricks.     See Kan. Stat. Ann. § 59-
29a02(b).

                                    12
does not comply with the requirements articulated in Crane.                 The

State responds that Crane does not demand that an SVP statute use

particular words, so long as the statute narrows commitment to

those who lack control over their behavior.

¶18         Leon and Walker correctly note that Arizona’s SVP act

does not include an express statutory provision requiring the state

to prove an individual has “serious difficulty in controlling” his

or her behavior.     We do not agree, however, that due process, under

Hendricks and Crane, mandates explicit references to words such as

“control” or “capacity” in civil commitment statutes for several

reasons.

¶19         First, Leon and Walker’s interpretation of Crane seems to

contradict the Court’s warning that the constitutionality of a

commitment statute does not depend upon the particular language

that a legislature chooses to narrow the class of persons eligible

for commitment.      Hendricks, 521 U.S. at 359, 117 S. Ct. at 2081

(“[W]e    have   never   required    state    legislatures     to   adopt   any

particular nomenclature in drafting civil commitment statutes.”).

In Crane, the Court specifically declined the parties’ invitation

to impose a “bright-line rule[]” and reiterated that “[s]tates

retain considerable leeway in defining the mental abnormalities and

personality      disorders    that   make    an   individual   eligible     for

commitment.”      Crane, 534 U.S. at __, 122 S. Ct. at 871.                 The

Court’s    reluctance    to    require     particular   statutory    language



                                      13
reflects its concern that “courts should pay particular deference

to reasonable legislative judgments” in the area of mental health

regulations.       Jones v. United States, 463 U.S. 354, 365, n.13, 103

S. Ct. 3043, 3050 (1983); see also Addington, 441 U.S. at 431, 99

S. Ct. at 1812 (explaining “states must be free to develop a

variety of solutions to problems and not be forced into a common,

uniform    mold”    and   “[a]s       the   substantive     standards      for      civil

commitment may vary from state to state, procedures must be allowed

to vary so long as they meet the constitutional minimum”).

¶20         More     importantly,       the      Court   upheld   the     Kansas     SVP

statute,    which    imposes     no    express      “difficulty     in    controlling

behavior” requirement.          In Hendricks, the Court did not focus on

the Kansas legislature’s use of the word “capacity” in defining

mental    abnormality.          Rather       the   Court    concentrated       on    the

statutorily-required           link     between      “a     finding       of     future

dangerousness” and a “finding . . . of a ‘mental abnormality’ or

‘personality disorder.’”              Hendricks, 521 U.S. at 358, 117 S. Ct.

at 2080. The Kansas act’s coupling of “proof of dangerousness with

the proof . . . of a ‘mental abnormality,’” rather than the act’s

use of the term “capacity,” is what “serve[d] to limit involuntary

civil     confinement     to    those        who   suffer    from     a   volitional

impairment.”       Id.    The Crane opinion further explained that the

Court “did not give to the phrase ‘lack of control’ a particularly

narrow or technical meaning.”               534 U.S. at __, 122 S. Ct. at 870.



                                            14
¶21         We conclude that Crane’s statement that a state must

prove “serious difficulty in controlling behavior” does not require

express statutory language, but rather reiterates the requirement

that an SVP statute substantially and adequately narrows the class

of individuals subject to involuntary civil commitment.                 See Id.

Crane does not alter the Court’s analysis in Hendricks that focused

on the link between proof of dangerousness and proof of mental

abnormality in upholding the Kansas Act.              Hendricks and Crane

require the state to establish that a defendant suffers from a

mental incapacity that causes difficulty in controlling behavior to

ensure   that   the   state    distinguishes     between    dangerous      sexual

offenders     subject     to   involuntary      commitment     from     typical

recidivists. Hendricks and Crane, however, afford legislatures the

autonomy to determine how the state must prove the requisite lack

of control.

                                    III.

¶22         The question, then, is whether Arizona’s SVP statute

sufficiently    narrows    the   class     of   persons    subject    to    civil

commitment as SVPs.       We conclude the statute meets that standard.

Although the statute does not mimic Crane’s “serious difficulty in

controlling behavior” language, the statute necessarily requires

the state to prove that an alleged SVP’s dangerousness results from

a mental impairment rather than from voluntary behavior.


                                     15
                                A.

¶23       To civilly commit an individual under the SVP act, the

state must prove, beyond a reasonable doubt, that the individual is

an SVP.   A.R.S. § 36-3707.A.   The statute defines an SVP as an

individual who “[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.”

A.R.S. § 36-3701.7. In addition, the person must exhibit “a mental

disorder that makes the person likely to engage in acts of sexual

violence.”   Id. (emphasis added).7

¶24       Although the SVP act applies only to those persons whose

mental disorder makes them likely to engage in future acts of

sexual violence, the statute does not define “likely.” Because the

meaning attached to the term affects the scope of the class of

persons subject to civil confinement under the act, we cannot

compare Arizona’s statute with the standard set forth in Hendricks

and Crane without first defining this central term.

¶25       “Likely” is not a legal term with a fixed meaning.   The

dictionary defines “likely” as meaning “having a high probability

of occurring or being true; very probable.”      Merriam-Webster’s

Collegiate Dictionary 674 (10th ed. 1999).    Courts have attached


      7
              Mental disorder means 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.”
A.R.S. § 36-3701.5.

                                16
various meanings to the term, depending to a large extent upon the

context within which it is used.              E.g., United States v. Powell,

761 F.2d 1227, 1233 (8th Cir. 1985) (likely means more likely than

not; more probable than not); In re Foster, 426 N.W.2d 374, 377

(Iowa 1988)(likely means “probable or reasonably to be expected”);

Holden v. Missouri R. Co., 84 S.W. 133, 136 (Mo. Ct. App. 1904)

(likely means “reasonably certain to accrue in the future”).                 The

Arizona    Court    of   Appeals   has    interpreted    a   criminal    statute

referring to “circumstances likely to produce death or serious

physical    injury,”     A.R.S.    section     13-3623   (2001),    as   meaning

probable as compared with possible.             State v. Johnson, 181 Ariz.

346, 350, 890 P.2d 641, 645 (App. 1995); see also Martin v.

Reinstein, 195 Ariz. 293, 314 ¶ 68, 987 P.2d 779, 800 (App. 1999)

(holding   the     SVP   statute   requires     a   probability,   not   a   mere

possibility of future dangerousness).

¶26         As those decisions demonstrate, defining “likely” as

meaning “probable” raises no due process concerns.                 The question

for us, however, is not which definition of “likely” would satisfy

constitutional requirements, but which definition the legislature

intended to attach to the term.

¶27         In   this    instance,   after     considering    other   statutory

language, we conclude that the legislature’s use of the term

“likely” reflects its decision to require a standard somewhat

higher than “probable.”        Dietz v. Gen. Elec. Co., 169 Ariz. 505,



                                         17
510, 821 P.2d 166, 171 (1991) (explaining that when the meaning of

a statutory term is not clear, we look to the overall language of

the statute for assistance).            The legislature provided guidance as

to the meaning of “likely” in section 10 of the SVP act, which sets

out the legislative findings that led to the passage of the act.

1995 Ariz. Sess. Laws ch. 257 § 10.                         Subsection 3 directly

addresses the civil commitment procedure adopted as part of the

act.       In that subsection, the legislature noted that, for a “small

but extremely dangerous group of sexually violent predators,” the

“likelihood        of   the   sex    offenders    engaging     in   repeat   acts   of

predatory sexual violence is high.” Id.                 (emphasis added).         That

language bears a striking similarity to the common and dictionary

definitions of “likely” as being “highly probable.” Construing the

term       as   meaning    “highly    probable”      also   gives   effect   to     the

legislative decision to distinguish the standard in the SVP act

from that in the general commitment statute, which requires showing

behavior that “can reasonably be expected . . . to result in

serious         physical   harm.”      A.R.S.    §   36-501.4   (1993).      If     the

legislature had intended the same standard to apply in the two

statutory schemes, we think the legislature would have used the

same terms.          Use of “likely” rather than “reasonably expected”

indicates the legislature intended to adopt a more stringent

standard in the SVP act.8


       8
          Other jurisdictions also have interpreted “likely” in
sexually dangerous persons civil commitment statutes as meaning

                                          18
                                 B.

¶28         The Arizona SVP statute thus permits civil commitment of

a person as an SVP only if the state proves, beyond a reasonable

doubt, that (1) the person has a mental disorder, as defined in

A.R.S. section 36-3701, that predisposes the person to commit

sexual acts to such a degree that he or she is dangerous to others

and (2) the mental disorder makes it highly probable that the

person will engage in acts of sexual violence.       The dictionary

defines “make” as meaning “to cause to act in a certain way” or to

“compel.”    Merriam-Webster’s Collegiate Dictionary 702 (10th ed.

1999). Recently, the Arizona Court of Appeals interpreted “makes,”

as used in the SVP act, as meaning “impair[ing] or tend[ing] to

overpower the person’s ability to control his or her behavior.” In

re Wilber W., __ Ariz. __, ¶ 18, 53 P.3d 1145, 1149 (App. 2002).

We agree with and adopt this interpretation of the statutory

language.    As thus construed, the statute requires that the state

prove that a person has “serious difficulty in controlling” his or

her dangerous behavior.     That is, if the state establishes the

required nexus between a person’s mental disorder and the person’s

dangerousness and proves that the disorder, rather than a voluntary


“highly probable.” See, e.g., In re Linehan, 594 N.W.2d 867, 878
(Minn. 1999) (present disorder makes it “highly likely” that the
defendant will engage in future harmful sexual acts); Westerheide
v. Florida, 767 So. 2d 637, 652-53 (Fla. Dist. Ct. App.
2000)(“likely” means “highly probable or probable and having a
better chance of existing or occurring than not”). The reasoning
of those courts, interpreting state statutes similar to ours,
supports our conclusion.

                                 19
decision, makes the person act in a certain manner, the state has

shown that the person has “serious difficulty in controlling” his

or her behavior.

¶29        Accordingly, the Arizona SVP act requires much more than

a finding of dangerousness.          The statute permits confinement only

if the state demonstrates the cause and effect relationship between

the alleged SVP’s mental disorder and a high probability the

individual will commit future acts of violence. Typical recidivists

who choose to commit acts of sexual violence do not fall within the

purview of Arizona’s SVP act.             The state may commit only those

persons who lack control because a mental disorder, not a voluntary

choice, makes them likely to commit sexually violent acts.                     Hence,

although   the     statute    does     not     expressly   refer    to     “serious

difficulty in controlling behavior,” the statutory language does

embody the functional equivalent of that phrase.                         Therefore,

Arizona’s SVP act distinguishes “the dangerous sexual offender

whose   serious    mental    .   .   .   disorder    subjects      him    to    civil

commitment from the dangerous but typical recidivist convicted in

an ordinary criminal case” in compliance with Hendricks and Crane.

Crane, 534 U.S. at __, 122 S. Ct. at 870.

¶30        Other jurisdictions confronted with challenges to SVP

statutes after Crane have concluded that a jury necessarily finds

a defendant lacks the requisite control when the state links the

individual’s      mental    disorder     and    dangerousness.       See       In   re



                                         20
Luckabaugh, 568 S.E.2d 338, 349 (S.C. 2002) (“Inherent within the

mental    abnormality      prong   of   the    Act      is    a   lack    of    control

determination.”);        In re Laxton, 647 N.W.2d 784, 793 (Wis. 2002)

(concluding proof of the nexus between the individual’s mental

disorder and dangerousness “necessarily and implicitly involves

proof that the person’s mental disorder requires serious difficulty

for   such   person   in    controlling      his   or    her      behavior”).          The

reasoning of these courts further supports our interpretation of

the Arizona SVP act.

                                        C.

¶31          Some jurisdictions, after holding that the state, by

establishing a nexus between the individual’s mental disorder and

dangerousness,     necessarily      proves      that         an   alleged      SVP     has

difficulty in controlling his behavior, have declined to require a

specific instruction including the Crane “serious difficulty in

controlling behavior” language.               See Illinois v. Hancock, 771

N.E.2d 459, 463-66 (Ill. App. Ct. 2002); Laxton, 647 N.W.2d at 795.

But see In re Thomas, 74 S.W.3d 789, 792 (Mo. 2002).                     We agree with

these    courts   that   due   process    requirements,           as   set     forth    in

Hendricks and Crane, do not mandate a specific jury instruction.

¶32          As a matter of practice in Arizona, however, trial judges

provide jury instructions explaining the applicable law in terms

the jury can readily understand.          Noland v. Wootan, 102 Ariz. 192,

194, 427 P.2d, 143, 145 (1967); Barrett v. Samaritan Health Servs.,


                                        21
153 Ariz. 138, 143, 735 P.2d 460, 465 (App. 1987).           We find the

reasoning of the dissent in Laxton persuasive:

      Although the words of [Wisconsin’s SVP statute] might be
      interpreted by lawyers and judges to include a link
      between the mental disorder and a serious difficulty in
      controlling behavior, the jury instructions based
      directly on the language of [Wisconsin’s SVP statute] do
      not set forth this link for non-lawyers.

Laxton, 647 N.W.2d at 798 (Abrahamson, C.J., dissenting).            Given

the important interests involved in SVP proceedings for both the

state and the individual, no question should arise as to whether

the jury understands the importance of finding that a mental

disorder, rather than a voluntary decision to engage in repetitive

criminal behavior, renders a person dangerous within the meaning of

the SVP statute.      Accordingly, trial judges should specifically

instruct juries as follows:

      The State must prove, beyond a reasonable doubt, that the
      person has a mental disorder that makes it highly
      probable that the person will engage in future acts of
      sexual violence. A finding of dangerousness, standing
      alone, is not a sufficient ground to determine an
      individual is a sexually violent person. An individual’s
      dangerousness must be caused by a mental disorder which,
      in turn, causes the person to have serious difficulty in
      controlling his or her behavior.

¶33        In    Leon’s   commitment    proceedings,   the   trial   judge

instructed the jury using language similar to the instruction

stated above.9     The judge, however, instructed that “[p]roof of


      9
       In Leon’s commitment proceeding the judge instructed the
jury:
     “Likely” means of such nature or so circumstantial as to
     make something probable and having a better chance of
     existing or occurring than not.          A finding of

                                   22
dangerousness must be caused by an existence of a mental disorder

which makes it difficult, if not impossible, for the respondent to

control his dangerous behavior.” (Emphasis added).    Judges should

not use the word “impossible” in describing a defendant’s inability

to control his or her behavior because this incorrectly implies the

state must prove an alleged SVP lacks complete or total control.

Due process does not impose such an absolutist approach.          See

Crane, 534 U.S. at __, 122 S. Ct. at 870.

                                IV.

¶34        For the foregoing reasons, we hold Arizona’s SVP act

complies with the substantive due process principles enunciated in

Hendricks and Crane.   Accordingly, we vacate the Court of Appeals’

decision in In re Leon G., 199 Ariz. 375, 18 P.3d 169 (App. 2001),

and affirm the trial court’s decision.

¶35        Because Walker appears before us in a special action, we

cannot determine from the limited record available whether Walker’s



      dangerousness, standing alone, is not a sufficient ground
      to convict respondent of being a sexually violent person.
      Proof of dangerousness must be caused by an existence of
      a mental disorder which makes it difficult, if not
      impossible, for the respondent to control his dangerous
      behavior either immediately or over time.

Leon requested the instruction defining “likely” in this manner and
did not raise its appropriateness as an issue on appeal.         He
therefore waived review on this issue. See State v. Miranda, 200
Ariz. 67, 68, ¶ 1, 22 P.3d 506, 507 (2001). The record in Walker’s
case does not include the jury instructions from his commitment
proceeding. Walker, like Leon, did not challenge the proprietary
of the instructions used at his trial.

                                 23
jury received appropriate instructions, the extent of the evidence

presented to establish Walker as an SVP, whether Walker contested

the evidence presented, or which, if any, issues remain available

for Walker to raise at this point. We also cannot determine

whether, if Walker has preserved issues for appeal and can timely

raise those issues, any error asserted would constitute harmless

error.   Therefore, we reverse the trial court’s order releasing

Walker from the Arizona State Hospital and remand for further

proceedings consistent with this opinion.

                                      ______________________________
                                      Ruth V. McGregor
                                      Vice Chief Justice

CONCURRING:


____________________________________
Charles E. Jones, Chief Justice


____________________________________
Stanley G. Feldman, Justice


_______________________________
Rebecca White Berch, Justice


___________________________________
Michael D. Ryan, Justice




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