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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MH2014-003019

No. 1 CA-MH 14-0083

Appeal from the Superior Court in Maricopa County

No. MH2014-003019

The Honorable Susan G. White, Judge Pro Tempore

VACATED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix

By Anne H. Phillips

Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix

By Anne C. Longo and Bruce P. White

Counsel for Appellee/Petitioner
IN RE MH2014-003019

Decision of the Court

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MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.

K E S S L E R, Judge:

¶1 Appellant appeals the trial court’s September 18, 2014 order 

compelling him to undergo involuntary inpatient and outpatient mental 

health treatment. For the following reasons, we vacate the court’s order.

FACTUAL AND PROCEDURAL HISTORY

¶2 On September 10, 2014, a doctor petitioned for a courtordered evaluation of Appellant pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 36-523 (Supp. 2014).1 The next day, the trial court issued 

a detention order for evaluation and notice, which was served on 

Appellant. The evaluating doctors petitioned the court for court-ordered 

treatment of Appellant pursuant to A.R.S. § 36-533 (Supp. 2014). 

¶3 On September 15, the trial court issued a detention order for 

treatment and notice of hearing pursuant to A.R.S. § 36-535 (Supp. 2014).2 

Appellant was served with the petition, detention order, and notice of 

hearing on September 15 and counsel was appointed to represent 

Appellant. The hearing was set for September 19. At a hearing on 

September 18 where Appellant was not present counsel for both parties 

stipulated to accelerate the September 19 hearing to September 18. At the 

accelerated hearing, Appellant’s counsel waived Appellant’s presence. 

When the court asked if Appellant’s counsel was comfortable continuing 

without Appellant, rather than waiting to proceed on September 19, 

counsel stated he did not “believe that anything w[ould] change” because 

 

1 We cite to the current versions of statutes when no changes material to 

this decision have since occurred. Although this section has recently been 

amended, the amendment is not material to this decision. See 2015 Ariz. 

Sess. Laws, ch. 195, § 36-523 (1st Reg. Sess.).

2 Although this section has recently been amended, the amendment is not 

material to this decision. See 2015 Ariz. Sess. Laws, ch. 195, § 36-535 (1st

Reg. Sess.).
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Appellant’s doctor had informed him that Appellant was in the safe and 

secure room.

3

¶4 Without making further inquiries, the court proceeded with 

the hearing. Counsel stipulated to the admission of the doctors’ affidavits. 

Two witnesses, a behavioral technician and a psychiatric nurse employed 

by the facility where Appellant had been admitted, also testified at the 

hearing. At the conclusion of the hearing, the court dismissed the allegation 

that Appellant was a danger to himself for insufficiency of the evidence, but

found Appellant to be “persistently or acutely disabled as a result of a 

mental disorder” and unable or unwilling to accept voluntary treatment. 

The court ordered Appellant undergo combined inpatient and outpatient 

treatment. See A.R.S. § 36-540 (Supp. 2014). 

¶5 Appellant timely appealed the order. We have jurisdiction 

pursuant to A.R.S. §§ 12-120.21(A) (2003) and 36-546.01 (2009).

DISCUSSION

¶6 Appellant argues the trial court’s order for involuntary 

treatment must be vacated because: (1) Appellant’s due process rights were 

violated when his trial counsel waived his presence and the court failed to 

determine whether Appellant’s waiver was voluntary, knowing, and 

intelligent; (2) Appellant’s due process rights were violated when the court 

failed to inquire into alternative means by which Appellant could appear at 

the civil commitment hearing; (3) Appellant did not receive sufficient notice 

of the A.R.S. § 36-539 (Supp. 2014)4 hearing, as required by A.R.S. § 36-536

(Supp. 2014); and (4) Appellant was denied effective assistance of counsel.

“We review the application and interpretation of statutes as well as 

constitutional claims de novo because they are questions of law.” In re MH 

2007-001275, 219 Ariz. 216, 219, ¶ 19, 196 P.3d 819, 822 (App. 2008), 

superseded by statute on other grounds by A.R.S. §§ 36-537 and -539.

¶7 Preliminarily, Petitioner contends that because Appellant

failed to argue to the trial court that there was any issue regarding his 

counsel’s waiver of his appearance or that the court should have explored 

alternative means by which he could attend the hearing, Appellant has 

 

3 Later testimony revealed doctors had placed Appellant in the safe and 

secure room as a result of an incident with a staff member that morning. 

4 Although this section has recently been amended, the amendment is not 

material to this decision. See 2015 Ariz. Sess. Laws, ch. 75, § 36-539 (1st Reg. 

Sess.).
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waived these arguments and cannot now raise them on appeal. However, 

constitutional arguments may be raised at any time and this Court has the 

discretion to decide whether to consider those arguments. Olson v. Walker, 

162 Ariz. 174, 181, 781 P.2d 1015, 1022 (App. 1989). “Further, this Court 

does not have to apply waiver when justice requires, because the waiver 

rule is procedural rather than jurisdictional.” MH 2007-001275, 219 Ariz. at 

219, ¶ 11, 196 P.3d at 822 (internal citation omitted). It is unrealistic to think 

the same counsel who agreed to accelerate the hearing and waived 

Appellant’s appearance would either object to proceeding in such fashion 

or argue that the court accepting such stipulations was committing error. 

Under these circumstances, and in an exercise of our discretion, we will 

address these due process issues.

¶8 Court ordered involuntary treatment constitutes “a serious 

deprivation of liberty” which requires the State to afford a patient with due 

process protections. Id. at ¶ 13; In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 

14, 152 P.3d 1201,1204 (App. 2007); see also In re MH-2008-000867, 225 Ariz. 

178, 180, ¶ 4, 236 P.3d 405, 407 (2010) (stating civil commitment is “a 

massive curtailment of liberty” and requires due process protection) 

(internal quotations marks and citation omitted). In determining whether 

appropriate due process protections have been provided for a patient

during proceedings such as this, the Arizona Supreme Court has looked to 

the test set out in Mathews v. Eldridge, 424 U.S. 319, 335 (1973). MH-2008-

000867, 225 Ariz. at 181, ¶¶ 9-10, 236 P.3d at 408. Mathews identifies three 

factors to be weighed in considering whether due process has been 

appropriately provided:

First, the private interest that will be affected by the official 

action; second, the risk of an erroneous deprivation of such 

interest through the procedures used, and the probable value, 

if any, of additional or substitute procedural safeguards; and 

finally, the Government’s interest, including the function 

involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would entail.

424 U.S. at 335. “Similarly, in determining whether civil mental health 

commitment proceedings afford basic Fourteenth Amendment due 

process, we must balance the liberty interests of the patient against the 

various interests of the state, and consider whether the procedures used or 

proposed alternatives will likely lead to more reliable outcomes.” MH2008-000867, 225 Ariz. at 181, ¶ 10, 236 P.3d at 408.
IN RE MH2014-003019

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I. Voluntary, Knowing, and Intelligent Waiver of Presence at A.R.S. § 

36-539 Hearing

¶9 As applied to this case, under Mathews, Appellant was denied 

basic due process when the A.R.S. § 36-539 evidentiary hearing proceeded

in his absence without a determination that Appellant voluntarily, 

knowingly, and intelligently waived his right to attend the hearing. As to 

the first factor of Mathews, which requires the consideration of the private 

interest affected, 424 U.S. at 335, involuntary treatment massively curtails 

an individual’s liberty. In re MH2010-002637, 228 Ariz. 74, 79, ¶ 18, 263 P.3d 

82, 87 (App. 2011). As such, procedural safeguards are needed to protect 

the patient against erroneous orders for involuntary treatment. Id. 

Although the procedural protections in a civil commitment proceeding are 

different than those required in a criminal proceeding, “[a]mong the 

minimum procedural safeguards [against error] is the need to provide the 

patient with a meaningful opportunity to be heard at the civil commitment 

hearing.” Id. The patient’s personal waiver of his presence at the hearing 

after being informed of what he is waiving is a minimum procedural 

safeguard. Without such steps, a patient’s presence could easily be 

erroneously waived. 

¶10 The second Mathews factor requires the consideration of “the 

risk of an erroneous deprivation of such interest through the procedures 

used, and the probable value . . . of additional or substitute procedural 

safeguards.” 424 U.S. 335. Under the facts of this case, the risk of a patient’s 

presence being waived erroneously is much greater if a court fails to 

determine that there is sufficient evidence to support that counsel’s waiver 

on behalf of the patient was voluntarily, knowingly, and intelligently 

authorized by the patient. Further, the patient, the patient’s counsel, or 

third parties may be examined on the record to ensure the waiver was 

proper and to determine whether the patient was competent to waive his 

right. The imposition of such a duty is not excessive or overly burdensome. 

¶11 Finally, as to the third factor set out in Mathews, which entails 

the consideration of the government’s interest, requiring the court to ensure 

any waiver of presence by a patient is voluntary, knowing, and intelligent 

is in the government’s interest. This is especially so given the strong public 

policy to have the patient attend the civil commitment hearing, as 

articulated in A.R.S. § 36-539.5 Id. at 80, ¶ 22, 263 P.3d at 88. Further, the 

government has no legitimate interest in precluding the court from making 

 

5 “The patient and the patient’s counsel shall be present at all hearings . . . 

.” A.R.S. § 36-539(B).
IN RE MH2014-003019

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inquiries into the voluntary, knowing, and intelligent nature of such a 

waiver. 

¶12 Petitioner argues that the 2009 amendment to A.R.S. § 36-539 

supersedes Appellant’s due process rights, permitting counsel to waive 

Appellant’s presence, even without consulting Appellant. According to 

Petitioner, because A.R.S. § 36-539(B) was amended in 2009 and now states 

that “[t]he patient may choose to not attend the hearing or the patient’s 

attorney may waive the patient’s presence,” no further inquiry by the court 

was necessary. 

¶13 We disagree that the language used in A.R.S. § 36-539, 

without additional court inquiry, trumps Appellant’s constitutional due 

process rights. Due process protections entitle “[a]n adult who is the subject 

of a proposed involuntary treatment order . . . to [a] full and fair adversary 

hearing[].” MH 2006-000749, 214 Ariz. at 321, ¶ 14, 152 P.3d at 1204 (internal 

quotations marks and citations omitted). As discussed above, part of that 

due process right is to be present at the hearing unless the patient 

voluntarily, knowingly, and intelligently waives that right. Section 36-

539(B) requires that “[t]he patient and the patient’s attorney shall be present 

at all hearings . . . .” It is generally accepted that intended beneficiaries of 

statutory protections may waive the benefit of the statute. MH 2006-000749, 

214 Ariz. at 322, ¶ 18, 152 P.3d at 1205. Section 36-539(B) expressly allows 

for the patient to waive his right to be present at the hearing by choosing 

not to attend or for the patient’s counsel to waive the patient’s presence. 

However, this express statutory language does not negate the need for 

further court inquiry when a patient or a patient’s counsel seeks to waive a 

fundamental right. The court must ensure that the waiver is voluntarily, 

knowingly, and intelligently made or that the patient is mentally 

incompetent to waive his presence. See MH 2007-001275, 219 Ariz. at 220, 

¶ 16, 196 P.3d at 823.6 

¶14 A court “may not presume that a patient who is absent from 

[his] involuntary treatment hearing has knowingly and intelligently waived

[his] right to be present.” MH 2006-000749, 214 Ariz. at 323, ¶ 24, 152 P.3d 

at 1206. The trial court must determine there is sufficient evidence to 

support “that counsel’s waiver [of a due process right] on behalf of the 

patient was in fact voluntarily, knowingly and intelligently made by the 

 

6 The Arizona legislature’s 2009 amendments of A.R.S. §§ 36-537 and -539 

supersede MH 2007-001275 only to the extent that the Court relied on these 

statutes. The amendments do not supersede the Court’s analysis of a 

mental health patient’s due process rights.
IN RE MH2014-003019

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patient.” MH 2007-001275, 219 Ariz. at 221, ¶ 19, 196 P.3d at 824. 

Specifically, the court is required to make this determination “either 

through conducting a colloquy with the patient or by review of the record.” 

Id. The express language in A.R.S. § 36-539(B) allowing for a patient’s 

counsel to waive a patient’s presence does not supersede the patient’s due 

process rights. 

¶15 This does not mean that in all cases the patient’s presence may 

only be waived if the trial court personally examines the patient. The very 

nature of commitment hearings may involve a patient who is simply not 

mentally competent to waive presence or cannot be present in the court to 

waive them. When the court is presented with evidence that the patient is 

not competent to waive the right to presence from either the counsel who 

attempted to see if the client wanted to attend the hearing or third parties 

with knowledge of the patient’s mental state at the time of the hearing, it 

can conclude that the waiver by counsel is valid or determine whether the 

patient can participate without being physically present. 

¶16 The court did not make such determinations here and the 

record does not contain the information required to make such 

determinations. The court made no inquiry into whether the waiver of 

Appellant’s presence by Appellant’s counsel was voluntarily, knowingly, 

and intelligently made by Appellant. Instead, Appellant’s counsel 

conceded he never met with Appellant to determine if he wanted to waive 

his appearance or if he could competently waive his appearance. Nor did 

the court hear evidence about the Appellant’s competence to waive 

attendance at the time of the hearing. Rather, the court simply relied upon 

a hearsay statement that Appellant was in restraints, apparently for 

pushing a staff member. This is insufficient to provide the basis for the 

findings required to comply with due process. Therefore, on these facts, 

the trial court erred in accepting Appellant’s trial counsel’s waiver of 

Appellant’s presence.

II. Alternative Means of Appearance

¶17 Appellant also argues his due process rights were violated as 

a result of the trial court’s failure to explore alternative means by which 

Appellant could attend the hearing. Petitioner contends that because 

Appellant’s counsel waived Appellant’s presence at the hearing, the court 

was not required to explore alternative means for Appellant to participate 

in the hearing. As previously discussed, however, the trial court erred in 

allowing Appellant’s counsel to waive Appellant’s presence. Although 

Petitioner attempts to distinguish this case from cases in which a court is 
IN RE MH2014-003019

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required to explore alternative means to allow a patient to participate, we 

do not find this case to be distinguishable. The record contains no evidence 

that Appellant’s counsel knew Appellant did not wish to participate. In 

fact, there is no evidence on the record that Appellant’s trial counsel even 

informed Appellant that the hearing was taking place on September 18. 

Further, although there is testimony that Appellant was in restraints, we 

will not assume, without further inquiry by the court, that an attempt to 

allow for Appellant’s telephonic appearance at the hearing would have 

been futile as Petitioner suggests. 

¶18 “When Appellant’s trial counsel has not inquired into 

whether the patient desires to attend the hearing and whether electronic 

attendance is feasible . . . Mathews requires the court to at least consider 

alternative means of appearance when the patient cannot otherwise 

attend.” MH 2010-002637, 228 Ariz. at 80, ¶ 23, 236 P.3d at 88. This 

independent duty imposed on the court is based on “considerations of the 

patient’s substantial interest, the increased risk of error when a patient does 

not have the opportunity to be heard, the ease of providing the patient with 

an alternative means of attending the hearing, and the important 

government interest in having the patient attend the hearing.” Id.

¶19 Although the record suggests that Appellant may have been 

unable to physically attend the hearing as a result of his medical condition 

and being restrained, the court made no inquiries into whether Appellant 

desired to attend the hearing or the existence of alternative means by which 

Appellant could appear at the hearing. The record lacks any evidence that 

Appellant’s trial counsel spoke to Appellant about whether he desired to 

attend the hearing, or that Appellant would have been unable to appear by 

alternative means. 

¶20 Consequently, because there is no evidence indicating that 

Appellant’s counsel’s waiver of Appellant’s presence was voluntarily, 

knowingly, and intelligently made by Appellant, that Appellant was 

incompetent to make such a waiver, or that Appellant was unable to appear 

at the hearing by alternative means, the order for involuntary treatment 

must be vacated.
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CONCLUSION

¶21 For the foregoing reasons, we vacate the trial court’s order for 

Appellant’s involuntary treatment.7

 

7 Because our decision regarding waiver of presence and alternative means 

of attending the hearing requires vacating the civil commitment order, we 

do not address Appellant’s other arguments.