In re MH 2007-000937 – 5/6/2008

May 12, 2008

Arizona Court of Appeals Division One Holds That Anti-Marital Fact Privilege Under A.R.S. § 12-2231 Applies in Proceedings for Court-Ordered Treatment Initiated by Petition Filed Pursuant to A.R.S. § 36-533.

K.M. had been diagnosed with a mental disorder and had participated in two court-ordered treatments.  After more “unsafe and bizarre behavior” followed, K.M.’s husband, E.M., filed with a health care screening agency an application for involuntary evaluation pursuant to A.R.S. § 36-520.  Following the medical evaluations, the trial court held a hearing to determine whether K.M. “was persistently or acutely disabled and needed treatment as a result of a mental disorder.”  At the hearing, K.M.’s husband testified regarding K.M.’s behavior.  K.M. objected to his testimony as violative of the anti-marital fact privilege contained in A.R.S. § 12-2231, which generally commands that “[i]n a civil action a husband shall not be examined for or against his wife without her consent. . . .”  The court overruled her objection and, based in part on E.M.’s testimony, ordered involuntary treatment for K.M. not to exceed one year.”  K.M. appealed.     

The Arizona Appeals Court reversed.  The Court repeatedly stressed that Arizona legislature did not except court-ordered treatment proceedings from the broad reach of the statute codifyingArizona’s anti-marital fact privilege in civil actions, and court-ordered treatment proceedings have been held to be civil actions.  While “agree[ing] with Appellee that application of the anti-marital fact privilege in mental health proceedings may be antithetical to the court’s role in determining if treatment is necessary,” the court maintained that “[w]hether mental health proceedings should be excepted from the privilege . . . is a policy decision for the legislature rather than this court.”     

Judge Timmer authored the opinion; Judges Norris and Brown concurred.