State v. Herrick (In Re Herrick) , 190 Wash. 2d 236 ( 2018 )

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This opinion was filed for record
IN CLiRKS OFFICE at " on ^
tUFFBlE COURT,81XIE OF WASKSWnM
DATE
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1 SUSAN L. CARLSON
rtce
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Detention of Donald Herrick. No. 94495-4
(consolidated with No. 94522-5)
STATE OF WASHINGTON,
Respondent,
V.
En Banc
DONALD HERRICK,
Petitioner. Filed: mar 0 8 M
YU,J.— Petitioner Donald Herrick is an alleged sexually violent predator
(SVP)awaiting trial after stipulating to probable cause and agreeing to be
evaluated by the State's expert. At the request ofthe State's expert and pursuant to
ROW 71.09.050(1), the trial court ordered Herrick to submit to penile
plethysmograph(PPG)and polygraph tests. Herrick refused to comply with the
court order, which resulted in a finding of contempt. Herrick brings a facial and
as-applied challenge to the statute, and he also challenges the lawfulness ofthe
contempt order. The Court of Appeals affirmed the trial court. We affirm.
In re. Det. ofHerrick,'No. 94495-4 ' '
FACTUAL AND PROCEDURAL BACKGROUND
Herrick pleaded guilty to first degree rape in October 1997 for breaking into
a woman's home while she was sleeping, orally raping her, and beating her until
she was unconscious. After serving a prison sentence, Herrick was released in
2006, and within three months, he stalked a teenage girl on her way home from a
bus stop. Herrick pleaded guilty to voyeurism and was sentenced to 22 months in
prison.
Herrick's voyeurism sentence included a community supervision period,
which required him to participate in sex offender treatment. His outpatient
deviancy treatment with Northwest Treatment Associates(NTA)included PPG
testing, which Herrick submitted to in 2009. An NTA provider explained that
"[t]here were so many signs of manipulation and suppression that Mr. Herrick's
test scores are actually considered inconclusive," but noted that he showed arousal
to scenarios involving rape of an adult female and, separately, rape of a female
child. Clerk's Papers(CP)at 276.
In 2010, Herrick was found guilty of violating the conditions of his
community placement by stalking two different women. He received a sanction of
120 days' confinement. In anticipation of his release, the State hired Dr. Brian
Judd to conduct an initial civil commitment evaluation. Dr. Judd diagnosed
Herrick with paraphilia not otherwise specified(NOS)nonconsent, alcohol abuse.
Inre.Det.ofHerrick,^o.9AA95-A ' '
cannabis abuse, antisocial personality disorder, and a provisional diagnosis of
voyeurism. The basis for the paraphilia NOS nonconsent diagnosis was Herrick's
conviction for first degree rape and Dr. Judd's assessment that the 2009 PPG test
showed clear arousal to rape.
While Herrick was still confined, the State petitioned for his civil
commitment as an SVP and included Dr. Judd's paraphilia NOS nonconsent
diagnosis as evidence of his mental abnormality. Herrick stipulated that there was
probable cause to find that he is an SVP, and, in accordance with RCW
71.09.040(4), the court ordered Herrick to submit to an evaluation and remain in
custody pending his SVP trial. In 2012, Dr. Judd updated his evaluation and
concluded that Herrick still suffered from paraphilia NOS nonconsent. Herrick
retained Dr. Stephen Jensen, who reviewed the 2009 PPG results and concurred
with the NTA evaluator that the results were "'inconclusive'" and added that "the
data is non-interpretable and has no clinical or predictive value in this case." Id. at
693.
Because the PPG test results were a critical element of his paraphilia NOS
nonconsent diagnosis. Dr. Judd determined that updated physiological testing was
necessary. He sought PPG testing to be followed immediately by an issue-specific
polygraph examination to determine(1)the state of Herrick's current sexual
arousal functioning and (2) whether Herrick used or attempted to use methods to
In re. Det. ofHerrick,^o. 9AA95-A
invalidate or circumvent PPG testing. The State accordingly filed a motion to
compel PPG testing pursuant to ROW 71.09.050(1).
Over Herrick's objection, the court granted the State's motion and ordered
Herrick to submit to PPG testing and an issue-specific polygraph examination.
The court denied Herrick's motion to certify the issue to the Court of Appeals
pursuant to RAP 2.3(b)(4), and Herrick then filed a notice of discretionary review
to the Court of Appeals.
While his notice of discretionary review was pending, Herrick refused to
submit to the PPG test. The court held Herrick in contempt and, as a remedial
sanction, determined that "the fact of refusal" was admissible at trial. Id. at 298,
1069. Herrick filed a notice of appeal to the Court of Appeals.
The Court of Appeals accepted discretionary review of the order for PPG
testing and affirmed in a unanimous published opinion. In re Det. ofHerrick, 198
Wn. App. 439, 442, 393 P.3d 879(2017). In a separate unpublished opinion, it
also unanimously affirmed the trial court's contempt order. In re Det. ofHerrick,
No. 69993-8-1, slip op. at 2(Wash, Ct. App. Apr. 3, 2017)(unpublished),
http://www.courts.wa.gov/opinions/pdf/699938.pdf. We granted Herrick's
petitions for review and consolidated the two cases.
Inre.Det.ofHerrick,l^o.9AA95A
ISSUES
A. Is RCW 71.09.050(l)(c) unconstitutional on its face?
B. Is RCW 71.09.050(1)(c) unconstitutional as applied to Herrick?
C. Did the trial court properly find Herrick in civil contempt?
STANDARD OF REVIEW
Whether a statute is unconstitutional is a question of law reviewed de novo.
State V. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092(2012). A statute is
presumed constitutional, and the party challenging it bears the burden of proving it
is unconstitutional beyond a reasonable doubt. Id. A trial court's decision to enter
an order of contempt is reviewed for abuse of discretion. Moreman v. Butcher, 126
Wn.2d 36, 40, 891 P.2d 725 (1995).
ANALYSIS
It is undisputed that Herrick validly stipulated that there is probable cause to
believe he is an SYP in this case. Once probable cause is established, the State is
authorized to request a current evaluation of the person. The statute governing
SVP petitions provides in relevant part that
[t]he prosecuting agency shall have a right to a current evaluation of
the person by experts chosen by the state. The judge may require the
person to complete any or all of the following procedures or tests if
requested by the evaluator:(a) A clinical interview;(b)psychological
testing;(c) plethysmograph testing; and (d) polygraph testing. The
judge may order the person to complete any other procedures and tests
In re. £)et. ofHerrick, No. 94495-4
relevant to the. evaluation.
RCW 71.09.050(1). Herrick argues this statute is unconstitutional on its face
because it has insufficient constitutional protections for sex offenders. He also
argues that the statute is unconstitutional as applied to him because there was no
reasonable necessity for PPG testing in this case.' Finally, he challenges the trial
court's finding of contempt.
A. RCW 71.09.050(1) is not facially unconstitutional
Herrick first argues that RCW 71.09.050(1) is facially unconstitutional
because "there is no guidance on the level of scrutiny a trial court must engage in
before granting a request by the State for PPG testing of a pretrial detainee."
Henick's Suppl. Br. at 7. Herrick therefore concludes that an order to submit to
PPG testing violates federal constitutional substantive due process.^ U.S. Const.
amend. XIV.
1. Plain language
Before considering Herrick's substantive due process claim, we note that
Herrick's argument is inconsistent with the plain language ofthe statute. If a
'Herrick does not separately challenge the order to undergo an issue-specific
polygraph examination.
Herrick does not specify.whether he raises substantive or procedural due process claims,
but we analyze his argument as a substantive due process challenge consistent with the Court of
Appeals. Herrick also, alleges a violation of article I, section 7 of the Washington Constitution,
but he provides no argument or analysis in support and we therefore only consider his federal
constitutional challenge. State v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017); see also
RAP 10.3(a)(6).
In re. bet. ofHerrick,'tio. 94495-4
statute's meaning is plain on its face,"then the court must give effect to that plain
meaning as an expression of legislative intent." Dep't ofEcology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4(2002).
Herrick suggests that PPG testing will always be ordered at the request of
the State, but the plain language ofthe statute states otherwise. RCW 71.09.050(1)
provides that "[t]he prosecuting agency shall have a right to a current evaluation,"
but it does not grant the State the right to PPG testing in every case. To the
contrary, the statute expressly vests the judge with the discretion to order any or all
procedures or tests, including PPG testing, only "if requested by the evaluator" and
if relevant to the evaluation.^ RCW 71.09.050(1)(emphasis added). RCW
71.09.050 is unambiguous and "we will not construe the statute otherwise." State
V. J.P., 149 Wn.2d 444, 450,69 P.3d 318 (2003).
As Herrick's counsel conceded at oral argument, there are circumstances in
which a court applying RCW 71.09.050(1) could order or decline to order PPG
testing in a way that even Herrick would concede is constitutional. See Wash.
Supreme Court oral argument.In re Det. ofHerrick, No. 94495-4 (Jan. 25, 2018),
at 5 min., 45 sec., audio recording by TVW, Washington State's Public Affairs
^ As originally introduced, Senate Bill 6493 stated that a "judge shall" order testing if
requested by an evaluator. An amendment was passed to preserve judicial discretion hy
ehanging the language to a "judge may" order testing. Amend. 6493-S AMH WAYS FAME
198 to Substitute S.B. 6493,62d Leg., Reg. Sess.(Wash. 2012)(emphasis added).
In re. bet. ofHerrick,'Ho. 9AA95-A
Network, http://www.tvw.org. Because nothing in the statute prevents courts from
providing the individualized determinations that Herrick claims are constitutionally
required, Herrick fails to carry his burden that RCW 71.09.050(1) is
unconstitutional beyond a reasonable doubt.
2. Substantive due process
In Young, we applied strict scrutiny to the SVP statute for the first time and
.determined that it "implicates no substantive due process concerns." In re Pers.
Restraint of Young, 122 Wn.2d 1, 59, 857 P.2d 989(1993). We have since rejected
similar challenges. See McCuistion, 174 Wn.2d at 392;In reDet. ofMorgan, 180
Wn.2d 312, 327, 330 P.3d 774(2014);In re Pers. Restraint ofMeirhofer, 182
Wn.2d 632, 651, 343 P.3d 731 (2015);In reDet. ofBelcher, 189 Wn.2d 280, 291,
399 P.3d 1179(2017). Nevertheless, Herrick argues that RCW 71.09.050(1)
amounts to a substantive due process violation because the judge is not required to
make an individualized determination that testing is reasonable and that there is not
a less-intrusive testing alternative. Herrick's Suppl. Br. at 6.
When a statute impinges on a significant liberty interest, it must be narrowly
drawn to further a compelling state interest. Young, 122 Wn.2d at 26. We have
held more than once that the State has a compelling interest in protecting society
from sex offenders and, as such, is "irrefutable." Id. The public safety concerns
are amplified in this context, where there is already probable cause that the sex
In re. Det. ofHerrick,"0. 94495-4
offenders are likely SVPs and therefore potentially dangerous. In fact, civil
commitment is impermissible without a finding of dangerousness because it is
reserved only for "those who suffer from an impairment 'rendering them
dangerous beyond their control.'" In re Det. ofThorell, 149 Wn.2d 724, 731-32,
72 P.3d 708 (2003)(quoting v. Hendricks, 521 U.S. 346, 358, 117 S. Ct.
2072, 138 L. Ed. 2d 501 (1997)).
While we are mindful that PPG testing is invasive, there is a particular
context for the testing and limiting principles for its use. PPG testing may provide
critical information to an evaluator charged with determining if an alleged SVP has
a mental abnormality that could be the basis for civil commitment. We have
specifically recognized PPG testing as an effective and generally accepted method
for diagnosing sex offenders.'^ In re Det. ofHalgren, 156 Wn.2d 795, 806, 132
P.3d 714(2006)(citing State v. Riles, 135 Wn.2d 326, 343-44, 957 P.2d 655(1998)). The requested test in this case is for diagnosis and evaluation and not for
monitoring.
There are also sufficient safeguards to ensure that testing is not arbitrary. A
judge may order PPG testing only at the request of an evaluator who has
"demonstrated expertise in conducting evaluations of sex offenders, including
PPG testing is not subject to Frye v. United States, 54 App. D.C. 46, 293 F. 1013(1923). Halgren, 156 Wn.2d at 806.
Inre.bet.ofHerrick,^o.9AA95-A
diagnosis and assessment of reoffense risk," WAC 388-880-033(1). And the
professional guidelines ofthose who administer the PPG test caution it should be
used on a "case-by-case basis with due consideration given to the limitations and
the intrusiveness of the procedure." WAC 246-930-310(7)(c).
Herrick argues United States v. Weber, 451 F.3d 552(9th Cir. 2006)
supports his position, but it is inapposite. Weber concerns a defendant's challenge
iXo PPG testing imposed as a condition of supervised release pursuant to a federal
sentencing statute, 18 U.S.C. § 3583(d).^ This case is different. Unlike in Weber,
we have a statute that explicitly authorizes a court to order PPG testing. And,
unlike in Weber, testing is part of a comprehensive evaluation prior to an SVP trial
and not for purposes of monitoring.
In sum, we hold that RCW 71.09.050(1) on its face does not violate
substantive due process. The statute is narrowly drawn to further the State's
compelling interest in protecting the public from potentially dangerous sex
offenders. Testing is for the limited purpose of diagnosing an alleged SVP prior to
trial, and PPG testing is generally accepted for this purpose. We recognize that
PPG testing is intrusive, and consistent with the language ofthe statute, trial courts
should carefully evaluate a request for such testing by inquiring as to whether this
^ The Ninth Circuit did not reach the substantive due process issue. Weber, 451 F.3d at
n.l4.
10
In re. l)et. ofHerrick,]^o. 94495-4
specific test is necessary for purposes of the evaluation and whether there are less
intrusive alternatives. For example,judges should ask why a PPG test is the
preferred testing tool; what the specific purpose ofthe test,is relative to the
individual; whether there is any evidence of dishonesty or manipulation by the
individual regarding the stimuli for sexual arousal that the PPG will rebut; and
whether there is any other test that is less intrusive that will render the same
..information or be equally effective in evaluating the individual.
B. RCW 71.09.050(1) is not unconstitutional as applied to Herrick
Herrick briefly argues in the alternative that even if a trial court could order
PPG testing in accordance with RCW 71.09.050(1) without a constitutional
violation, the order actually entered in his case violates his constitutional rights.
Hemck does not clearly state on what basis the trial court's decision is
unconstitutional, but he asserts that "[tjhere was no evidence that a new PPG was
reasonably necessary or would produce reliable results and the trial court did not
consider any alternatives to this invasive type of testing," Herrick's Suppl. Br. at
11. Because we reject Herrick's invitation to read into RCW 71.09.050(1)
additional requirements, we reject his as-applied challenge as well. The record
supports the trial court's finding that it had good cause to order testing in this case.
A brief recitation ofthe timeline is critical to understanding the trial court's
decision. Dr. Judd first evaluated Herrick in 2010. He used Herrick's conviction
11
In re. bet. ofHerrick, 1:^0. 94495-4
for first degree rape and the results of the PPG test Herrick completed in 2009 as
the basis for his diagnosis of paraphilia NOS nonconsent. While NTA deemed the
PPG results inconclusive overall, Dr. Judd believed Herrick showed "clear arousal
to humiliation rape of an adult female and rape of a female minor, despite apparent
efforts to suppress arousal." CP at 1114.
The following year, Herrick stipulated that there was probable cause to find
; he is an SVP. Dr. Judd updated his evaluation and concluded that Herrick still
suffered from paraphilia NOS nonconsent based on the same information he used
in his initial evaluation. Thereafter, Dr. Jensen, retained by Herrick, reviewed the
PPG data from 2009 and asserted that the data was not only '"inconclusive"' but
also "non-interpretable and has no clinical or predictive value in this case." Id. at
693.
In light of Dr. Jensen's critique ofthe PPG data and at the request of Dr.
Judd, the State filed a motion to compel Herrick to complete a new PPG test
pursuant to ROW 71.09.050(1). The State also requested that the court order an
issue-specific polygraph examination because Herrick had attempted to suppress
his arousal during the initial PPG and thereafter sought information on how to
manipulate the test should it be administered again. In a recorded jailhouse
telephone call, Herrick repeatedly asked his then girlfriend to research "how to
beat, how to win, how to cheat" PPG testing. Id. at 704.
12
In re. bet. ofHerrick,'No. 94495-4
The trial court granted the State's motion because there was "good cause to
order the testing in the present case." Verbatim Report ofProceedings (Jan. 22,
2013) at 29. The judge listed numerous factors to support his decision at the
hearing, including that the statute explicitly authorizes the court to order PPG
testing. The judge also stated new testing was warranted because the initial PPG,
which Herrick may have manipulated, was conducted for purposes oftreatment
;before the State filed the SVP case. Id. at 26-27. Finally, the judge concluded
Halgren and Riles endorsed PPG testing as an effective tool for diagnosing sex
offenders. Id. at 27.
In conclusion, Herrick's as-applied challenge fails. The record indicates that
the trial court had good cause to order PPG testing after thorough consideration of
the issue.
C. The trial court's contempt order
' The trial court held Herrick in contempt for failing to complete court-
ordered PPG and issue-specific polygraph testing. Herrick requests that we
oyertum the contempt order if he prevails on his constitutional challenges.
Herrick's constitutional arguments are not meritorious, and he does not otherwise
challenge the validity of the contempt order. Therefore, we hold that the trial court
did not abuse its discretion in finding Herrick in contempt and we affirm the Court
of Appeals on this issue. We do not find it necessary to address the proper remedy
13
In re. bet. ofHerrick,'No. 94495-4 ' • ' '
for a finding of contempt in this instance since the proceedings are ongoing at the
trial court.
CONCLUSION
Compelled PPG testing pursuant to court order in accordance with RCW
71.09.050(l)(c) complies with substantive due process, including in Herrick's case.
The trial court therefore properly found Herrick in contempt for refusing to comply
.with the order compelling PPG testing. We affirm the Court of Appeals.
14
, >1 •
In re. Det. ofHerrick, No. 94495-4
J-
WE CONCUR:
A.aAA>W^
'C. J
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