In Re Pinal County Mental Health No. MH-201000076 (CA2 11/22/10)

This mental-health opinion concerns an alleged conflict between statute and court rule. It comes to the right result but we’re not sure how.

This is an appeal from an involuntary commitment order. The statutes require that two physicians examine the patient before commitment; in this case one had done so in person, the other by “telemedicine.” The Supreme Court had already ruled that that isn’t good enough so in this case the state came up with a new argument: the statutes are unconstitutional because they conflict with Rules 702 and 703 governing the admission of expert testimony. This opinion holds the statues constitutional.

The opinion correctly cites Seisinger v. Siebel as the controlling precedent. Under Seisinger, if a statute and a court rule conflict then the statute prevails if the matter is substantive, the rule if it’s procedural. It’s a two-step analysis: 1) is there a conflict; if so, 2) is it substance or procedure.

But “In this case, the analyses concerning whether the statutes and rules conflict and whether the statutes are procedural or substantive are interconnected.” Why? It’s hard to know if the opinion thinks it explains that. In any event, the opinion goes on to conclude that 1) the statute and rule do not conflict and 2) the statutes establish a substantive burden of proof, as Seisigner permits. “Therefore [the statutes] . . .  are constitutional.”

The problem is that this misses Seisinger’s basic point, which is that the legislature can make procedural rules: “the legislature and this Court both have rulemaking power.” If statute and rule do not conflict then whether the issue is substantive or procedural doesn’t matter. It is reasonable to say “they don’t conflict and even if they did it’s substantive” but that isn’t what this opinion says. It says that the statue is constitutional because it doesn’t conflict and it’s substantive. The permutations of that formulation are incoherent.

(link to opinion)