                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            IN RE: FREDERICK B.

                          No. 1 CA-MH 18-0067 SP
                              FILED 7-25-2019


            Appeal from the Superior Court in Navajo County
                         No. S0900CV99000033
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Michael R. Shumway
Counsel for Appellee

LeGate, Penrod & Associates PLLC, Show Low
By Michael S. Penrod
Counsel for Appellant
                           IN RE FREDERICK B.
                           Decision of the Court


                      MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Diane M. Johnsen joined.


S W A N N, Chief Judge:

¶1            Frederick B. appeals the superior court’s denial of his petition
for discharge from commitment under Arizona’s Sexually Violent Persons
Act (“the Act”). Though the hearing on Frederick’s petition was
significantly delayed, Frederick did not timely seek relief and ultimately
suffered no prejudice. Likewise, the state’s failure to promptly serve a
formal disclosure statement caused no prejudice. Finally, Frederick’s
willful refusal to participate in annual examinations did not entitle him to
release. We therefore affirm.

                 SEXUALLY VIOLENT PERSONS ACT

¶2            The Act, A.R.S. § 36-3701 et seq., permits the court to commit
sexually violent persons (“SVPs”) to the custody of the department of
health services. A.R.S. § 36-3707(B)(1). An SVP is to receive care,
supervision, or treatment, id., and is to be examined annually to determine
whether conditional release to a less restrictive alternative would serve his
or her best interests and adequately protect the community, A.R.S. § 36-
3708(A). Further, when the SVP is subject to conditional-release terms and
conditions, his or her service providers must file periodic reports stating
whether he or she is complying with the terms and conditions of release.
A.R.S. § 36-3710(F). If the department of health services’ director or the
state hospital’s superintendent determines that the SVP’s disorder has so
changed that he or she is not likely to engage in acts of sexual violence if
conditionally released to a less restrictive alternative or if discharged, the
director or superintendent must allow the SVP to petition the court for such
release or discharge. A.R.S. §§ 36-3709(A), -3714(A). But even absent such
a determination, the SVP has an absolute right to annually petition the court
for conditional release to a less restrictive alternative or discharge. A.R.S.
§§ 36-3709(B), -3714(B).

                 FACTS AND PROCEDURAL HISTORY

¶3          Frederick was committed under the Act in 1999. He has since
remained at the Arizona Community Protection and Treatment Center



                                      2
                           IN RE FREDERICK B.
                           Decision of the Court

(“the Center”), conditionally released in 2005 to an on-site less-restrictive-
alternative program. Throughout his commitment, Frederick has filed
multiple unsuccessful petitions for conditional release to a less restrictive
alternative or discharge. This appeal concerns his 2016 discharge petition.
He was represented by counsel at all relevant times.

¶4            In July 2016, the state filed a copy of Frederick’s annual-
examination report. Relying entirely on collateral sources because
Frederick had refused to participate in the examination, the examiner
concluded that commitment remained warranted because Frederick
continued to suffer from mental disorders that made him likely to engage
in acts of sexual violence. The Center’s next quarterly report, filed on
October 20, 2016, stated that Frederick was not in compliance with the terms
and conditions of his conditional release.

¶5            Frederick filed a petition for discharge on October 21, 2016,
arguing that “the quarterly report does not address [Frederick]’s ongoing
condition or the likelihood that a man of his age would engage in acts of
sexual violence.” The state filed an opposition to Frederick’s petition on
November 3, and Frederick filed a reply on November 10. No hearing was
requested or set.

¶6            On December 22, two months after filing his petition,
Frederick filed a request for discharge based on the state’s failure to
organize a hearing on his petition within the 45-day post-petition period
prescribed by A.R.S. § 36-3714(A). The state opposed Frederick’s request,
arguing that § 36-3714(A) did not apply. Frederick filed another request for
discharge on January 6, 2017. The court did not rule on either of Frederick’s
requests for summary relief, but did set the discharge petition for hearing
on March 21, five months after Frederick’s initial petition.

¶7            In anticipation of the hearing, Frederick submitted a
disclosure statement and the state moved for a telephonic appearance by a
potential witness, Dr. John St. Clair, who had signed the October 2016
quarterly report as the Center’s director of psychology.

¶8            The week before the hearing, Frederick moved to preclude the
state’s evidence based on its failure to provide disclosure. The state then
promptly supplied a disclosure statement.

¶9           At the outset of the March 21 hearing, the state expressed its
desire to brief the motion to preclude. In response, Frederick again
complained that the state had failed to ensure a timely hearing. The court
permitted the state to file a response to the preclusion motion and set the


                                      3
                           IN RE FREDERICK B.
                           Decision of the Court

matter for oral argument in mid-April. The court later reset the argument
to May 1 for unstated reasons.

¶10           In its written opposition to the motion to preclude, the state
asserted that Frederick had already received copies of all relevant reports,
knew from prior hearings that the state’s witness would be a professional
from the Center, and knew from the state’s motion for telephonic
appearance that the professional would be Dr. St. Clair. At the May 1
argument, Frederick conceded that he had received relevant reports and
now knew the identity of the state’s proposed witness.

¶11          On June 16, approximately a month and a half after the oral
argument and eight months after Frederick petitioned for discharge, the
court ruled that Frederick had suffered no prejudice with respect to
disclosure and sanctions were not warranted.

¶12           Several weeks later, on July 6, the state moved the court to set
the evidentiary hearing. The state also filed a 2017 annual-examination
report. The report noted that Frederick had again refused to participate,
and relied on collateral sources to conclude that Frederick’s commitment
should continue unchanged. The state filed an amended disclosure
statement identifying the report’s author, independent contractor Dr. Celice
Korsten, as a potential witness at the evidentiary hearing.

¶13           The court granted the state’s motion to set more than two
months later, on September 22. The court set the evidentiary hearing for
October 17, almost one full year after Frederick first filed his petition. The
hearing was thereafter continued multiple times, several times on
Frederick’s motion and once on the state’s motion with no objection by
Frederick.    The hearing finally took place on January 30, 2018,
approximately fifteen months post-petition, with Dr. Korsten testifying as
the sole witness.

¶14            Two months after the hearing, on March 30, 2018, the court
ruled that Frederick was ineligible for either discharge or conditional
release to a less restrictive alternative. Frederick appeals.




                                      4
                            IN RE FREDERICK B.
                            Decision of the Court

                               DISCUSSION

I.     FREDERICK IS NOT ENTITLED TO DISCHARGE BASED ON THE
       DELAYED RESOLUTION OF HIS PETITION.

¶15          Frederick first contends that he was denied due process, and
therefore must be discharged, because the court did not timely hear his
discharge petition.

¶16           A.R.S. § 36-3714 requires that a discharge petition, whether
filed by the SVP with the state’s permission or in exercise of his or her
independent annual right, be decided after an evidentiary hearing at which
the state bears the burden to prove beyond a reasonable doubt that the
SVP’s mental disorder has not changed and that he or she remains a danger
to others and is likely to engage in acts of sexual violence if discharged.1
A.R.S. § 36-3714(A)–(C); In re Leon G., 204 Ariz. 15, 20, ¶ 14 (2002).
Subsection (A) of the statute describes the SVP’s right to petition for
discharge with the state’s permission, and then specifies that “[t]he court
shall hold a hearing on the petition for discharge within forty-five days after
receiving the petition,” unless it “continue[s] the hearing on the request of
either party and a showing of good cause or on its own motion if the
respondent will not be substantially prejudiced.” Subsection (B) of the
statute establishes the SVP’s separate unconditional right to petition
annually for discharge, without prescribing when such a petition must be
heard.

¶17            Frederick contends that both varieties of discharge petition
are subject to the 45-day hearing deadline set forth in subsection (A). The
state contends that because the deadline is specified in subsection (A) only,
it applies only to the state-sanctioned petitions described in that subsection.

¶18           We resolve questions of statutory construction de novo,
looking to the statute as a whole. Stambaugh v. Killian, 242 Ariz. 508, 509,
¶ 7 (2017). “Where the legislature has specifically used a term in certain
places within a statute and excluded it in another place, [we] will not read
that term into the section from which it was excluded.” Arizona Bd. of
Regents v. State, 160 Ariz. 150, 157 (App. 1989); see also, e.g., Stambaugh, 242


1      A.R.S. § 36-3709 provides an identical scheme for petitions for
conditional release to a less restrictive alternative. The superior court cited
§ 36-3709 and concluded that Frederick was ineligible for either conditional
release to a less restrictive alternative or unconditional discharge.
Frederick’s petition, however, was for discharge only.


                                       5
                             IN RE FREDERICK B.
                             Decision of the Court

Ariz. at 511, ¶ 15. Applying that principle, we conclude that because the
legislature specified the 45-day hearing deadline in § 36-3714(A) only, the
deadline applies only to petitions filed under subsection (A), and not to
petitions (like Frederick’s) filed under subsection (B). Subsection (B)
prescribes no deadline for hearings on petitions filed by an SVP in the
exercise of his or her annual right.

¶19           The foregoing statutory analysis does not end our inquiry.
Commitment under the Act serves important public interests: it protects the
community from dangerous individuals, and it ensures that such
individuals receive treatment. Martin v. Reinstein, 195 Ariz. 293, 299, 313,
¶¶ 2, 61 (1999). But it also restrains the SVP’s liberty, potentially for life. Id.
at 316, 322–23, ¶¶ 74, 108, 110; Leon G., 204 Ariz. at 17–18, ¶¶ 1, 5. Such
deprivation of liberty cannot be imposed without due process of law. See
U.S. Const. amend. IV, XIV; Ariz. Const. art. 2, § 4.

¶20            The Act’s evidentiary standards and procedures, including
the annual-examination requirement and annual-petition right, comport
with due process. Martin, 195 Ariz. at 322–23, ¶¶ 109–10; In re Leon, 204
Ariz. at 17, 20, ¶¶ 1, 14–15. The annual examination by the state, and the
SVP’s annual opportunity to obtain judicial review, serve to ensure that
commitment continues only when justified. See Leon G., 204 Ariz. at 20, ¶ 15
(noting 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],’” and “due process requires
that the nature and duration of commitment bear some reasonable relation
to the purpose for which the individual is committed” (citations omitted)).
Those safeguards are deprived of their significance when judicial review
does not occur within a reasonable time. See Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” (citation omitted)); In re Commitment of Beyer, 287 Wis. 2d 1, 25,
¶ 31 (Wis. 2006) (holding that Wisconsin’s sexually violent person statutes,
“[b]y guaranteeing annual periodic examinations and judicial review
absent a ch. 980 committee’s affirmative waiver thereof, . . . assure that a
circuit court will expeditiously review the continued validity of a ch. 980
commitment” in order “to avoid defeating the purpose of the re-
examination process, as well as the committed person’s due process
rights”).

¶21           The superior court and the state, therefore, should make
diligent efforts to promptly address and resolve an SVP’s petition. Cf.
Ugalde v. Burke, 204 Ariz. 455, 458, ¶ 13 (App. 2003) (holding, in context of


                                        6
                            IN RE FREDERICK B.
                            Decision of the Court

trial on initial petition for commitment under Act, that “the State has a duty
to prosecute these cases diligently and that trial courts also have a duty to
manage these cases to comply with the [statutory] deadline, allowing
postponements only when justified under [the statute]”). The court did not
hear Frederick’s petition for approximately fifteen months. Frederick did
not consent to most of the delay and indeed objected on several occasions
to the passage of time. And on this record, much of the delay appears
unjustified. But contrary to Frederick’s contention, discharge is not the
remedy.

¶22            Frederick’s reliance on Fuller v. Olson, 233 Ariz. 468 (App.
2013), is misplaced. In Fuller, we held that a lengthy and unexcused delay
in bringing the state’s initial commitment petition to trial prejudiced the
potential SVP and entitled him to release. Id. at 473–74, ¶¶ 14–16. But
Frederick, unlike the individual in Fuller, is not a potential SVP who received
no hearing—he is a currently committed SVP who did eventually receive a
hearing that established (correctly, as Frederick concedes) he continues to
be ineligible for discharge.

¶23            When the hearing on an SVP’s status-change petition is
unreasonably delayed, the SVP may seek to compel the hearing. See Beyer,
287 Wis. 2d at 33, ¶ 54; Griffin v. Bruffett, 53 Kan. App. 2d 589, 607–08 (Kan.
App. 2017). At the appellate-court level, the SVP may obtain relief on
special action in the form of an order directing that the hearing promptly
be held. See Ariz. R.P. Spec. Act. 1(a), 3(a) (authorizing appellate courts to
correct on special action a defendant’s failure to perform a non-
discretionary duty required by law when there is no equally plain, speedy,
and adequate remedy by appeal). But we can offer no retrospective remedy
when we receive the case on appeal, after the hearing has occurred and
correctly resulted in no change of status. In such circumstances, the delay,
however unreasonable, will have caused the SVP no prejudice. (We note
that, unlike in Fuller, the SVP continues to receive treatment pending a
release hearing.) Granting the SVP a change in status on procedural
grounds when the change is not justified on the merits would contravene
logic and the purposes of the Act. See Beyer, 287 Wis. 2d at 33, ¶ 53 (holding
that delayed review of SVP’s status under Wisconsin’s sexually violent
persons statutes does not justify SVP’s discharge when he “continues to be
a sexually violent person, [because] the cost to the public of releasing him
into society would simply be too high and would be contrary to [the
statutes’] treatment objective”); see also State v. Bomar, 199 Ariz. 472, 478-79,
¶ 23 (App. 2001) (holding, in case of commitment of guilty-except-insane
person under A.R.S. § 13-3994, that “[n]o provision of the federal or state



                                       7
                           IN RE FREDERICK B.
                           Decision of the Court

constitution requires release of a person who continues to suffer from a
mental disease or defect and poses a danger”).

II.    FREDERICK IS NOT ENTITLED TO DISCHARGE BASED ON HIS
       WILLFUL REFUSAL TO PARTICIPATE IN ANNUAL
       EXAMINATIONS.

¶24            Frederick next contends that he was denied due process, and
therefore must be discharged, because his refusal to participate in the 2016
and 2017 annual examinations rendered the examinations insufficient. He
contends that the state had a duty to conduct examinations that included
his participation, and that the state, therefore, should not have allowed him
to refuse to participate. This argument merits little discussion.

¶25            The Act requires “annual examination” of each SVP by a
psychiatrist, psychologist, or other competent professional. A.R.S. § 36-
3708(A). The Act does not establish substantive criteria for the examination.
See A.R.S. §§ 36-3701, -3708. The examination must, however, permit the
professional to form reliable opinions. See Walter v. Wilkinson, 198 Ariz. 431,
433, ¶ 13 (App. 2000).        Obviously, the SVP’s participation in the
examination will enhance the reliability of the professional’s opinions and
may aid the state in meeting its burden to justify continued commitment,
see A.R.S. §§ 36-3709, -3714. The state should make diligent efforts to secure
the SVP’s participation in examinations. But it would be absurd to hold
that the SVP may manufacture a due process violation by willfully refusing
to participate, particularly when the examiner has access to substantial
reliable collateral data in the form of the commitment records. See In re
MH2009-002120, 225 Ariz. 284, 289, ¶¶ 15-16 (App. 2010) (holding, in
context of court-ordered mental-health treatment under A.R.S. § 36-533,
that appellant’s willful refusal to participate in statutorily required
evaluation did not render evaluation insufficient). And we decline to hold
that the state must seek a court order whenever faced with such defiance.2




2      We note that, as a practical matter, a court order carries minimal
coercive weight when directed to one who already is committed. See
Korman v. Strick, 133 Ariz. 471, 474 (1982) (identifying detention and fines
as mechanisms of civil contempt); cf. Holt v. Hotham, 197 Ariz. 614, 615–16,
¶¶ 3, 10-11 (upholding contempt order against potential SVP who refused
to submit to the initial examination and holding that “should a person be
allowed to refuse such an examination, the SVP Act would be eviscerated”).



                                      8
                            IN RE FREDERICK B.
                            Decision of the Court

¶26            The record demonstrates that Frederick was allowed to
participate in the examinations and deliberately declined to do so. Nothing
in the record indicates that his refusal to participate deprived the examiners
of the opportunity to render reliable opinions.

III.   THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
       DECLINING TO IMPOSE DISCLOSURE SANCTIONS.

¶27          Frederick finally contends that the superior court should have
precluded the state from presenting evidence based on untimely disclosure.

¶28           The Arizona Rules of Civil Procedure govern disclosure
under the Act. See A.R.S. § 36-3704(B); State v. Gottsfield, 213 Ariz. 583, 585,
¶ 7 (App. 2006). Imposition of sanctions for disclosure violations under the
rules is within the superior court’s discretion. Zimmerman v. Shakman, 204
Ariz. 231, 235, ¶ 10 (2003). The disclosure rules are intended to provide
parties a reasonable opportunity to prepare for trial, not to create a
mechanism by which technical procedural failings may result in danger to
the public and the cessation of rehabilitative treatment. See id. at ¶ 13. The
rules must be applied in a commonsense, case-by-case manner to maximize
the likelihood of a decision on the merits. Id. at ¶ 14.

¶29            Untimely disclosure under Rule 26.1 may warrant preclusion,
but not if the court finds that the delay caused no prejudice. Ariz. R. Civ.
P. 37(c)(1). Here, even if the state’s failure to serve a formal disclosure
statement until March 2017 constituted a violation of its obligations under
Rule 26.1, we discern no abuse of discretion in the superior court’s
conclusion that Frederick suffered no prejudice. Frederick admitted that he
had copies of the relevant reports, and we conclude that the state’s request
for telephonic appearance adequately notified him of the identity of the
state’s proposed witness. Further, though Frederick complains that the
state’s disclosure statement failed to identify the witness’s contact
information, as specified in Rule 26.1(a)(3), he did not object to the absence
of that information in the superior-court proceedings and the record
demonstrates that the information was readily available to him via other
sources.




                                       9
                   IN RE FREDERICK B.
                   Decision of the Court

                      CONCLUSION

¶30   We affirm the denial of Frederick’s petition for discharge.




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




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