Opinion
1 CA-SA 12-0034
03-15-2012
LEONARD DEEHAN, Petitioner, v. THE HONORABLE HUGH E. HEGYI, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
Maricopa County Superior Court No. MS 02121 18267
DECISION ORDER
Leonard Deehan (Petitioner) petitions this Court for special action relief challenging a superior court order dated December 2, 2011. Judges Diane M. Johnsen, Donn Kessler and Patricia A. Orozco have considered the Petition for Special Action, as well as the State's Response in Opposition to Special Action Petition and Petitioner's reply. Petitioner seeks special action relief from a court order denying his application for licensure as a private process server. Pursuant to Arizona Revised Statutes (A.R.S.) section 11-445.I (Supp. 2011) and Arizona Code of Judicial Administration (A.C.J.A.) section 7-204.E.5.a(5) and (10), the court denied Petitioner's application because of Petitioner's criminal history. In the exercise of our discretion, this Court accepts special action jurisdiction but denies the relief requested.
FACTUAL AND PROCEDURAL BACKGROUND
In 1979, Petitioner pleaded guilty to "lewd and lascivious acts on a child under age 15," a class two felony. Petitioner was released from prison upon good behavior in 1980 and has no subsequent criminal history.
In March 2011, Petitioner submitted his application for licensure, in which he disclosed his previous conviction. In connection with the application, Superior Court Judge Sam Myers ordered petitioner to submit to a risk assessment and provide the court with a report of the assessment. Judge Myers provided Petitioner with the names of several evaluators who were qualified to perform the assessment and noted that he would rule on Petitioner's application based on the assessment report. After Petitioner asked the court to specify the necessary requirements for performing the assessment, Judge Myers responded that "whatever methods used by an evaluator necessary for an opinion regarding [Petitioner] should be determined by the evaluator and not by the Court. The Court will accept an opinion from the evaluator based on the methods deemed appropriate by the evaluator."
Petitioner hired Scott Naegele, L.P.C, one of the risk assessment evaluators suggested by the court, to perform the assessment. As part of the assessment, Petitioner submitted to a polygraph examination and produced "truthful, non-deceptive responses to the relevant questions on the test." Based on the polygraph results and clinical interviews with Petitioner, Naegele submitted an assessment report to Judge Myers in which he opined that Petitioner is "a very low risk for sexual or general reoffense [sic]" and "it is highly unlikely that [Petitioner] is a risk to the community." Naegele concluded there is "no reason [Petitioner] couldn't ethically and responsibly complete the professional responsibilities he seeks to perform."
In August 2011, Petitioner's licensure matter was reassigned to Superior Court Judge Hugh Hegyi, who summarily denied Petitioner's application on August 15, 2011. Petitioner requested reconsideration, and following an evidentiary hearing on December 2, 2011, Judge Hegyi again denied the application pursuant to A.C.J.A. § 7-204.E.5.a(5) and (10).
DISCUSSION
Petitioner raises two issues: (1) whether the trial court abused its discretion by denying his application for licensure as a process server without considering mitigating evidence; and (2) whether the denial violates A.R.S. § 13-904.E (2010).
Jurisdiction
Pursuant to A.C.J.A. § 7-204.H.22, an applicant may seek judicial review of an order denying licensure through a petition for special action. However, special action jurisdiction is highly discretionary and is appropriate where there is no "plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a); see also State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 4, 165 P.3d 238, 240 (App. 2007). Because the trial court's order denying Petitioner's application is not appealable and Petitioner would therefore not have a plain, speedy, or adequate remedy on appeal, we accept special action jurisdiction.
Abuse of Discretion
Petitioner argues the trial court abused its discretion by failing to consider: (1) mitigating factors relating to Petitioner's crime; (2) the length of time since he committed the crime; (3) the asserted lack of any reasonable relationship between Petitioner's crime and his fitness or ability to perform the duties of a process server; (4) previous court orders from Judge Myers that, according to Petitioner, implied that Petitioner's application would be approved if he successfully completed a recidivism risk assessment evaluation; (5) Petitioner's successful completion of the risk assessment; (6) Petitioner's detrimental reliance on Judge Myers' orders, which caused him to incur additional expenses in an effort to complete the risk assessment; and (7) that denial of the application would serve to extend Petitioner's punishment beyond the sentence initially imposed.
An abuse of discretion occurs "where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. Similarly, a discretionary act which reaches an end or purpose not justified by, and clearly against, reason and evidence is an abuse." City of Phoenix v. Geyler, 144 Ariz. 323, 329, 697 P.2d 1073, 1079 (1985) (citations omitted); see also Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982) (defining abuse of discretion as "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons").
Pursuant to A.C.J.A. § 7-204.E.5.a(5), an application for licensure as a process server may be denied if the applicant has "[a] record of conviction by final judgment of a misdemeanor or felony." In addition, A.C.J.A. § 7-204.E.5.a(10) provides that an application may be denied if "[t]he applicant has violated any Arizona law, Arizona Rules of Court and this code section or court orders governing private process servers."
In this case, it is undisputed that Petitioner was convicted of lewd and lascivious acts upon a minor, a felony. Thus, pursuant to A.C.J.A. § 7-204.E.5.a(5) and (10), the court had the authority and discretion to deny Petitioner's application based solely on his prior conviction. Contrary to Petitioner's argument, A.C.J.A. § 7-204.E.5.a does not require the court to consider mitigating evidence. Because Judge Hegyi provided the reasons for denying the application as required by A.C.J.A. § 7-204.E.5.d and there was sufficient evidence to support the denial, we find the court did not abuse its discretion.
To the extent Petitioner argues the court abused its discretion because "the preponderance of the evidence weighs heavily in favor of the granting of licensure," sufficient evidence in the record supported the court's denial of the application and we decline Petitioner's invitation to reweigh the evidence. See Lohmeier v. Hammer, 214 Ariz. 57, 61, ¶ 7, 148 P.3d 101, 105 (App. 2006) ("In determining whether a trial court abused its discretion, we must determine not whether we might have so acted under the circumstances, but whether the lower court exceeded the bounds of reason by performing the challenged act." (citations and internal quotation marks omitted)). Similarly, we cannot say Judge Hegyi abused his discretion simply because Judge Myers might have reached a different conclusion. See Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188, 836 P.2d 398, 401 (App. 1992) ("If a court's decision is based upon . . . a balancing of competing interests, pursuit of recognized judicial policy, or any other basis to which we should give deference, we will not second-guess or substitute our judgment for that of the trial court." (citations and internal quotation marks omitted)).
Petitioner also argues the court abused its discretion by denying the application "without documenting the Court's rationale." However, the court explicitly stated in its order that it was denying the application pursuant to A.C.J.A. § 7-204.E.5.a(5) and (10), as required by A.C.J.A. § 7-204.E.5.d. To the extent Petitioner is asserting that the court was required to explain its reasoning, give specific factual and legal findings, or consider mitigating evidence, Petitioner fails to cite any legal authority to support this argument and A.C.J.A. § 7-204.E.5 does not require the court to provide such findings or analysis. In addition, we assume the court made the findings necessary to support the order. See In re Niky R., 203 Ariz. 387, 392, ¶ 21, 55 P.3d 81, 86 (App. 2002) (when not required to make specific findings, "the trial court will be deemed to have made every finding necessary to support the judgment" (citations and emphasis omitted)). Accordingly, we find no abuse of discretion.
A.R.S. § 13-904.E
Petitioner also contends that by denying his application solely because of his prior conviction, Judge Hegyi violated A.R.S. § 13-904.E, which provides:
A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.
This provision affords no protection to an applicant whose civil rights have been restored if the applicant's crime "has a reasonable relationship to the functions" of the occupation for which he has applied for a license. Petitioner argues there is no reasonable relationship between the nature of his offense and the functions of a process server and, accordingly, the court cannot deny his application solely because of his prior conviction.
Petitioner, however, does not contend that his civil rights have been restored pursuant to A.R.S. § 13-912.A (2010). Petitioner has therefore failed to provide the necessary foundation to make § 13-904.E applicable to his case.
In addition, it is unclear whether Petitioner raised this issue in the superior court because Petitioner has not provided a transcript of the evidentiary hearing on December 2, 2011 and did not make an argument related to § 13-904.E in any of the written material he filed in the trial court. Accordingly, Petitioner has waived this argument. See Richter v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596, 643 P.2d 508, 509 (App. 1982) ("[A]n appellate court cannot consider issues and theories not presented to the court below.").
In any event, even assuming for purposes of argument that Petitioner's civil rights have been restored, Judge Hegyi could reasonably have found a relationship between Petitioner's crime and his ability to ethically and professionally perform the functions of a private process server. Process servers are officers of the court who are cloaked in the authority of the State to serve official court documents at private residences where minors may be present without adult supervision. See A.R.S. § 11-445.I ("A private process server is an officer of the court."). Given this role within the court system, Judge Hegyi could reasonably have concluded that Petitioner's felony conviction is reasonably related to the functions of a process server. Because Petitioner has not provided a transcript of the evidentiary hearing on December 2, 2011, we must assume the court's factual findings support the order denying Petitioner's application. See Kohler v. Kohler, 211 Ariz. 106, 108 n.1, ¶ 8, 118 P.3d 621, 623 n.1 (App. 2005). We therefore find no violation of A.R.S. § 13-904.E.
CONCLUSION
For the reasons stated above, we find the superior court did not abuse its discretion and we affirm the order denying Petitioner's application for licensure as a private process server.
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PATRICIA A. OROZCO, Judge