In re Wood

551 P.3d 1163

IN RE the MATTER OF: Annette WOOD, an Adult.

No. 1 CA-CV 22-0710

Court of Appeals of Arizona, Division 1.

Filed May 30, 2024

West Codenotes

Limited on Constitutional Grounds

Ariz. Rev. Stat. Ann. §§ 14-5101(3), 14-5304, 14-5304.02

Appeal from the Superior Court in Coconino County, No. S0300GC202200040, The Honorable Stacy Lynn Krueger, Judge. VACATED AND REMANDED

Coconino County Legal Defender’s Office, Flagstaff, By Joseph Adam Carver, Counsel for Appellant

Coconino County Attorney’s Office, Flagstaff, By William P. Ring, Heather Mosher, Counsel for Appellee

Arizona Attorney General’s Office, Phoenix, By Joshua D. Bendor, Clinten N. Garrett, Counsel for Amicus Curiae

Arizona Center for Law in the Public Interest, Phoenix, By Daniel J. Adelman, Anne C. Ronan, Nicholas Ansel, Counsel for Amicus Curiae

Disability Rights Arizona, Tucson, By Maya S. Abela, Tamaraingsey In, Counsel for Amicus Curiae

Vice Chief Judge Randall M. Howe delivered the opinion of the court, in which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

OPINION

HOWE, Judge:

¶1 Annette Wood appeals the trial court’s order finding her incapacitated and placing her under a general guardianship, making her ineligible to vote under Arizona Constitution Article 7, Section 2(C). Wood argues that taking away her right to vote violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. She contends that A.R.S. §§ 14-5101(3), -5304, and -5304.02 (collectively, the "guardianship statutes") violate due process because they (1) terminate a person’s right to vote upon establishment of a general guardianship without a determination of the person’s voting capacity and (2) place the burden on the ward to justify retaining the right to vote. She also argues that § 14-5304.02 violates the Equal Protection Clause because it denies a subset of incapacitated persons the opportunity to retain the right to vote while granting another subset of incapacitated persons the opportunity to do so.

¶2 We agree that the guardianship statutes on their face violate due process in two ways. First, they terminate a person’s right to vote upon establishment of a general guardianship without a determination of the person’s voting capacity. Second, they impose the burden of showing voting capacity on the ward. Because the statutes violate due process, we need not consider Wood’s equal protection argument. See State ex rel. Bmovich v. City of Phoenix, 249 Ariz. 239, 247 ¶ 31, 468 P.3d 1200, 1208 (2020) (resolving a constitutional challenge on one ground obviates the need to consider other grounds). We therefore vacate the trial court’s order and remand for further proceedings in accordance with our decision.

FACTS AND PROCEDURAL HISTORY

¶3 Sixty-three-year-old Wood lives in an assisted living facility in Flagstaff. She uses a wheelchair and needs assistance with most of her daily activities. In May 2022, the Coconino County Public Fiduciary ("CCPF") petitioned to appoint a guardian for Wood because of a report that Wood had cognitive limitations and that a member of the assisted living facility’s staff had improperly asked her to sign checks for her care.

¶4 The CCPF alleged that Wood needed a guardian to make financial and medical decisions for her based on a health professional’s report and its case administrator’s interviews with Wood and the assisted living facility’s staff. The health professional diagnosed Wood with unspecified dementia without behavioral disturbance, severe intellectual disabilities, and a cognitive communication deficit. The health professional noted that Wood’s impairments nevertheless do not "affect [her] ability to receive or evaluate information needed in making or communicating personal and financial decision[s]." The report also listed Wood’s many medications.

¶5 During the interviews with the CCPF’s case administrator, Wood said that she was not currently taking any medication, even though she was. After the interviews, the case administrator concluded that Wood suffers from memory loss, impaired judgment, severe symptoms of anxiety and depression, and lacks insight into her medical condition and treatment. The CCPF requested that the court place Wood under a general guardianship because other alternatives, such as a limited guardianship or obtaining a power of attorney, were inappropriate. It did not, how ever, explain why a limited guardianship would be inappropriate.

¶6 The court appointed an investigator who interviewed Wood, the manager of the assisted living facility, and Wood’s case manager. Wood was unable to remember her address or whether she had lunch that day. The investigator also reviewed the health professional’s report and accompanying documents. The investigator then reported that "Wood is incapacitated by reason of unspecified dementia without behavioral disturbance." The investigator also reported that she suffers "severe intellectual disabilities" and a "communication deficit to the extent that she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person." She concluded that Wood would benefit from having a guardian.

¶7 Wood agreed that she needed a guardian but requested a limited guardianship, instead of a general guardianship, so that she could retain her right to vote. The trial court set a hearing under § 14-5304.02 to determine whether (1) a less restrictive means than a general guardianship could meet her needs and (2) she was capable of voting.

¶8 At the hearing, the court followed § 14-5304.02’s requirement that, when a limited guardian is appointed, Wood had the burden to prove that she "retain[ed] sufficient understanding to exercise the right to vote." Wood testified that she needed a guardian to make her medical decisions. Asked whether she needed a guardian for any other reason, she responded, "No." She also testified she did not need help with her finances. When asked whether she had trouble with her memory, she answered, "No. [ ] I’m fine." She accurately identified the city she was living in but could not remember her physical address.

¶9 Wood then testified that she wanted to vote. When asked about how she decided whom to vote for, she responded "I pay attention . as to how they are on TV and everything and I decide." She added that although she talks to other people when deciding whom to vote for, she makes her decision independently. The court asked whether she could identify the current presi- dent and vice president. She was initially unable to recall the president’s name but remembered his name later during the hearing. When asked when she intended to vote next, she stated, "Probably around the 6th, I think. I’m not actually sure." Finally, the court asked her to describe the process that she went through to vote by mail. She said, "Oh, they just send it to me and I fill it out and put it in the mailbox." Wood presented no other evidence. The CCPF presented no new evidence and relied on the evidence submitted with its petition.

¶10 The trial court found that Wood’s needs made a limited guardianship inappropriate and placed her under a general guardianship. The court alternatively ruled that "even if the [c]ourt had considered a limited [guardianship based on her need level, the [c]ourt does not find by clear and convincing evidence that she has—that she retains sufficient understanding to be able to vote." The court applied its own understanding of the phrase "sufficient understanding to exercise the right to vote," acknowledging that it lacked appellate court guidance on the phrase’s meaning. Wood timely appealed. This court has jurisdiction under A.R.S. § 12-2101(A)(9).

DISCUSSION

[1–3] ¶11 Wood challenges the general guardianship order only to the extent that it terminated her right to vote. She argues that Arizona’s disenfranchisement of those under a general guardianship violates the Due Process Clause.¹ This court reviews the constitutionality of a statute de novo. State v. Arevalo, 249 Ariz. 370, 373 ¶ 9, 470 P.3d 644, 647 (2020). Whenever possible, this court will construe statutes to avoid rendering them unconstitutional. Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 230 ¶ 25, 459 P.3d 486, 492 (2020). But in reviewing statutes "deny[ing] some residents the right to vote, the general presumption of constitutionality afforded state statutes … [is] not applicable." Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 62–28, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); see also Gallardo v. State, 236 Ariz. 84, 87 ¶ 9, 336 P.3d 717, 720 (2014) (noting that "if a law burdens fundamental rights … any presumption in its favor falls away").

I. General Principles

¶12 Arizona’s Probate Code establishes the procedures to determine whether an individual is incapacitated and needs a guardian. A court may appoint a general or limited guardian if the court finds by clear and convincing evidence that (1) "[t]he person for whom a guardian is sought is incapacitated"; (2) "[t]he appointment is necessary to provide for the demonstrated needs of the incapacitated person"; and (3) "[t]he person’s needs cannot be met by less restrictive means, including the use of appropriate technological assistance." A.R.S. § 14-5304(B). In placing persons under a guardianship, the trial court "shall encourage the development of maximum self-reliance and independence of the incapacitated person." A.R.S. § 14-5304(A).

[4] ¶13 Arizona law does not define "general guardianship" or "limited guardianship." But it defines "[i]ncapacitated person" as

any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. In cases of limited guardianship

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