by Douglas Ankney

In a case of first impression, the Supreme Court of Arizona held that trial courts have discretion to deny a sexually violent person (“SVP”) screening when requested by the State under Arizona Revised Statutes (“A.R.S.”) § 13-4518(A). The Court also provided guidance for trial courts exercising that discretion.

Anthony Garcia was charged with one count of sexual conduct with a minor. After a competency hearing under Arizona Rule of Criminal Procedure (“Rule”) 11.2, Garcia was determined to be not competent and not restorable, and the charge was dismissed. The State requested an SVP screening pursuant to § 13-4518(A). In response, Garcia argued it would be an abuse of discretion to order a screening where the record lacked substantial evidence to support the order.

The trial court believed it lacked discretion to deny an SVP screening and ordered it. Garcia appealed, arguing that: (1) § 13-4518(B) grants trial courts the discretion to deny the State’s request for an SVP screening; (2) interpreting § 13-4518 to deny trial courts discretion would violate due process; and (3) the trial court in the instant case abused its discretion by failing to exercise its discretion. In a divided opinion, the court of appeals denied relief. The Arizona Supreme Court granted further review because it was a matter of first impression, of statewide importance, of constitutional dimension.

The Court observed “[w]e look first to § 13-4518’s language to determine whether it gives trial courts discretion to order an SVP screening. When interpreting a statute, we aim ‘to give effect to the legislature’s intent.’” Premier Physicians Grp., PLLC v. Navarro, 377 P.3d 988 (Ariz. 2016). Courts must “give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous.” Nicaise v. Sundaram, 432 P.3d 925 (Ariz. 2019).
A.R.S. § 13-4518 provides, in pertinent part:

“A. If the county attorney receives a report that determines a defendant is incompetent to stand trial, the county attorney may request that the defendant be screened to determine if the defendant may be a sexually violent person ...

B. If the court orders a screening to determine if the defendant may be a sexually violent person ...

1. The court shall appoint a competent professional ... to conduct the screening....”

The Court reasoned that the use of the word “may” in § 13-4518(A) indicates that the county attorney has discretion to request a screening as “may” is a word showing “permissive intent.” Democratic Party of Pima Cnty. v. Ford, 269 P.3d 721 (Ariz. Ct. App. 2012). Similarly, the definition of the word “request” includes “to express a desire for, especially politely; ask for.” American Heritage Dictionary (5th ed. 2011). The Court stated that “request” conveys asking for a privilege and does not convey an entitlement. Consequently, subsection (A) does not contain any language that limits the trial court’s authority to grant or deny the State’s request, the Court concluded.

However, the word “if” in § 13-4518(B) implies conditionality, according to the Court. Definitions of “if” include “in the event that” and “on the condition that.” American Heritage Dictionary (5th ed. 2011). By using the phrase “[i]f the court orders a screening,” the legislature indicated that the rest of subsection (B) only applies under the condition that the trial court had chosen to act, which necessarily establishes the court’s discretion not to act, explained the Court. Therefore, the Court ruled “§ 13-4518’s plain language provides the trial court with discretion to grant or deny the state’s SVP screening request.”

The use of mandatory language in subsection (B)(1) further supports this interpretation, the Court stated. Once the trial court exercises its discretion to grant the screening, the use of the word “shall” divests it of any further discretion regarding the screening of the defendant. “The court shall appoint a competent professional ... to conduct the screening....” is mandatory language. See Ross v. Blake, 136 S. Ct. 1850 (2016) (characterizing “shall” and “may not” as mandatory). The legislature’s use of discretionary, permissive language in one section of a statute but using restrictive, mandatory language in the other indicates that the legislature intended the restriction to apply only where it was designated. See Russell v. United States, 464 U.S. 16 (1983).

Having concluded the trial court had the discretion to grant or deny the State’s requested screening, the Court issued guidance for trial courts when exercising that discretion. Although no standard is mentioned in the statute, the Court announced that trial courts must consider whether the State has reasonable grounds to request an SVP screening. The Court explained that the objective in giving trial courts discretion under § 13-4518(B) is for the trial court to act as a neutral check on the State’s authority and to balance public safety with a defendant’s due process rights. See United States v. Salerno, 481 U.S. 739 (1987). The Court instructed that the State must “offer reasonable grounds that indicate an SVP screening might support the initiation of commitment proceedings under § 36-3704.” According to the Court, the reasonable grounds standard is sufficient to balance the defendant’s liberty interests with the State’s interest in protecting society.

When evaluating the State’s request, trial courts should treat it as any other motion, relying on evidence and arguments proffered by the parties as well as other information before it. See § 36-3705(D). The Court cautioned that this “list of factors is not exhaustive, however, and a court should consider all relevant evidence when it exercises its discretion under § 13-4518(B) in determining whether to order a defendant to undergo an SVP screening.”

Accordingly, the Court vacated the trial court’s screening order and remanded for that court to exercise its discretion under § 13-4518(B). See: Garcia v. Butler, 487 P.3d 256 (Ariz. 2021). 

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