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Arizona State Hospital/Arizona Community Protection and Treatment Center v. Klein

Court of Appeals of Arizona, First Division, Department E

February 5, 2013

The Honorable Andrew G. KLEIN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Charles P., Real Party in Interest.

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          Thomas C. Home, Arizona Attorney General By Greg D. Honig, Assistant Attorney General, Aubrey Joy Corcoran, Assistant Attorney General, Phoenix, Attorneys for Petitioner.

          Maricopa County Office of the Legal Advocate By Mary Beth Mitchell, And Daniel R. Raynak, Phoenix, Attorneys for Real Party in Interest.


          JOHNSEN, Judge.

         ¶ 1 In this special action we hold that Arizona Rule of Evidence 702 applies to testimony by a mental-health expert at a trial on a petition for discharge filed by a person committed under the Arizona Sexually Violent Persons Act ("SVPA"), Arizona Revised Statutes ("A.R.S.") sections 36-3701 to -3717 (West 2013).[1] Petitioner is the Arizona Community Protection and Treatment Center ("Center"), in which real-party-in-interest Charles P. is detained for treatment pursuant to the SVPA. The Center challenges the superior court's order setting a pretrial hearing pursuant to Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to determine whether the Center's mental-health expert may testify at the trial on Charles's petition for discharge.

         ¶ 2 We accept jurisdiction of the Center's petition for special action but deny relief. We agree with the superior court that Rule 702 applies to expert testimony offered at a discharge proceeding conducted pursuant to A.R.S. § 36-3714. We also hold that whether to set a pretrial hearing to consider the admissibility of the expert testimony is a matter within the discretion of the superior court.


         ¶ 3 In 2000, after Charles P. served a 10-year prison sentence for attempted molestation of a child, the superior court found he was a sexually violent person under the SVPA and committed him to the Center for treatment. Thereafter, pursuant to A.R.S. § 36-3708(A), Center psychologists performed annual reviews of his treatment progress. In a report dated June 2, 2011, Ryan Goldenstein, Psy. D., and June M. Stapleton, Ph.D., observed that Charles had "made only minimal progress" since his most recent annual evaluation and concluded that if he were transferred to "a less restrictive environment, community safety would be at risk."

         ¶ 4 Charles subsequently petitioned the court for an absolute discharge pursuant to A.R.S. § 36-3714. Charles's petition disagreed with Goldenstein's and Stapleton's report and argued he no longer "fit the criteria for designation" as a sexually violent person. The superior court set an evidentiary hearing on his discharge petition pursuant to A.R.S. § 36-3714(C).

         ¶ 5 The Center designated Goldenstein as its mental-health expert witness for the discharge hearing. Goldenstein's vitae shows he received master's and doctorate degrees in clinical psychology from the American School of Professional Psychology at Argosy University in Phoenix in 2008 and 2010, respectively. He received a bachelor's degree in psychology in 2005 from Minnesota State University, Moorhead, and has been employed by the Center since 2010. In an affidavit, Goldenstein stated his "primary responsibility" with the Center "is to conduct the annual examination" of sexually violent persons, prepare reports based on those evaluations and testify about his conclusions.

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          ¶ 6 Prior to the discharge hearing, Charles filed a motion asking the court to set a hearing to evaluate Goldenstein's competence and the methodology he used in concluding Charles should not be discharged. Charles argued Goldenstein had not "utilize[ed] generally accepted scientific methods" in evaluating him and lacked "the clinical experience necessary to make an evaluation without utilizing proper scientific methods." He argued Goldenstein should be precluded from testifying because he "does not use any actuarials" in performing his annual evaluations of persons committed under the SVPA, and instead uses "unguided clinical judgment, which has been universally rejected in the scientific community as being unreliable." Charles further told the court that he would offer evidence that peer-reviewed studies have determined the methodology Goldenstein uses is "severely flawed."

         ¶ 7 In opposing Charles's request, the Center argued that under the SVPA, a witness need only qualify as a "competent professional" pursuant to A.R.S. § 36-3701(2) to testify at a discharge hearing. It also argued that contrary to Charles's assertion, Goldenstein does not employ unguided clinical judgment, but instead uses "research guided clinical judgment." The Center added that Charles's challenges to Goldenstein's education, experience and competency properly went to the weight to be accorded his testimony, not to its admissibility under Rule 702.

         ¶ 8 The superior court ordered a hearing pursuant to Rule 702 and Daubert to determine whether to admit Goldenstein's testimony, then granted a stay to allow the Center to petition for special action relief.


         A. Jurisdiction.

          ¶ 9 The Center's petition for special action argues the superior court erred by ordering a pretrial hearing to determine the admissibility of Goldenstein's testimony. Exercise of special action jurisdiction is discretionary but proper when the petitioner has no plain, adequate or speedy remedy by appeal. State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App.2002). Exercise of jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again. Id.

         ¶ 10 Whether Rule 702 and Daubert apply to mental-health testimony offered in a hearing on a petition to discharge a committed person is a matter of statutory construction and therefore is purely a legal question. Further, according to the Center, Goldenstein is the primary evaluator for 77 other committed persons, five of whom have moved for Daubert hearings. Thus, the issue likely will arise again. For all of these reasons, we accept jurisdiction of the Center's petition for special action.

         B. Admissibility of Expert ...

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