In re Pers. Restraint of Meirhofer

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint )
of ) No. 89251-2
)
ALAN MEIRHOFER, ) EnBanc
)
Petitioner. ) Filed FEB 1 2 2015
GONZALEZ, J.-Alan Meirhofer was civilly committed under the sexually
violent predator (SVP) act, chapter 71.09 RCW, in 2000. He now seeks a full
evidentiary proceeding on whether he still meets the statutory and constitutional
criteria for SVP commitment. Before holding such a full evidentiary proceeding, the
SVP act directs trial courts to hold an initial show cause hearing to determine whether
the State has presented prima facie evidence that continued commitment is justified or
the detainee has presented prima facie evidence that his or her condition has "so
changed" as to warrant a new evidentiary proceeding. The trial court found the State
had made its showing and Meirhofer had not. We affirm.
BACKGROUND
In the late 1980s, Meirhofer was charged with several counts of brutally raping
children, along with charges of burglary and kidnapping. Meirhofer v. State, noted at
109 Wn. App. 1057,2001 WL 1643535, at *1. Meirhofer was implicated in several
In re Pers. Restraint ofMeirhofer, No. 89251-2
more child rapes. Pers. Restraint Pet. (PRP), App. B at 4-8. He pleaded guilty to
several charges, apparently in return for the State dropping others. Meirhofer, 2001
WL 1643535, at *1. As Meirhofer finished serving his criminal sentence, the State
brought SVP commitment proceedings against him under the SVP act, chapter 71.09
RCW. This act authorizes the State to civilly commit those who "suffer[] from a
mental abnormality[!] or personality disorder[ 2l which makes the person likely to
engage in predatory acts of sexual violence if not confined in a secure facility." RCW
71.09.020(18). At the civil commitment trial, the State submitted evidence that
Meirhofer suffered from pedophilia; paraphilia not otherwise specified (NOS)
nonconsent; a personality disorder with antisocial features; and alcohol and
amphetamine dependence, and that he had a high risk ofreoffending. Mot. for Discr.
Review (MDR) (June 15, 2012), App. Bat 20, 15. In 2000, a jury found beyond a
reasonable doubt that Meirhofer was a sexually violent predator and the trial court
ordered him civilly committed to the Special Commitment Center. Meirhofer, 2001
WL 1643535, at *2.
Civil commitment under the SVP act is indefinite, but the Department of Social
and Health Services (DSHS) is required to have the condition of each person detained
1
'"Mental abnormality' means a congenital or acquired condition affecting the emotional or
volitional capacity which predisposes the person to the commission of criminal sexual acts in a
degree constituting such person a menace to the health and safety of others." RCW
71.09.020(8).
2
"Personality disorder" means an enduring pattern of inner experience and behavior that
deviates markedly from the expectations ofthe individual's culture, is pervasive and
inflexible, has an onset in adolescence or early adulthood, is stable over time and leads to
distress or impairment. Purported evidence of a personality disorder must be supported
by testimony of a licensed forensic psychologist or psychiatrist.
RCW 71.09.020(9).
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under the act reviewed by a qualified professional at least annually and regularly
report to the court whether each detainee still meets the statutory and constitutional
criteria for civil commitment. RCW 71.09.070(1); WAC 388-880-031. If the
secretary of DSHS determines that a detainee does not still meet the requirements,
"the secretary shall authorize the person to petition the court for conditional release to
a less restrictive alternative or unconditional discharge." RCW 71.09 .090(1 ). In such
cases, "[t]he court must order an evidentiary hearing upon receipt of the petition."
State v. McCuistion, 174 Wash. 2d 369, 380,275 P.3d 1092 (2012) (citing RCW
71.09.090(1)), cert. denied, 133 S. Ct. 1460 (2013). Alternatively, those civilly
committed under the SVP act can petition the court for either full release or release to
a less restrictive alternative than full civil commitment. RCW 71.09.090(2)(a). In
such cases, the trial court will hold a show cause hearing to determine if sufficient
grounds exist to hold a full evidentiary proceeding. McCuiston, 174 Wash. 2d at 380
(citing RCW 71.09.090(2)(a)). At this show cause hearing, the State bears the burden
of presenting prima facie evidence that continued commitment is appropriate. !d.
(citing RCW 71.09.090(2)(b)); In re Det. ofPetersen, 145 Wn.2d 789,798,42 P.3d
952 (2002). If it fails to do so, the court will hold a full evidentiary hearing. RCW
71.09.090(2). Alternately, the detainee may present prima facie evidence that there is
probable cause to believe his or her condition has "so changed" that release is
appropriate. RCW 71.09.090(2)(c)(ii); McCuistion, 174 Wash. 2d at 382. If the detainee
succeeds, the court will set a full evidentiary proceeding. RCW 71.09.090(2)(c), (3);
In re Det. ofPetersen, 145 Wash. 2d at 798. At the show cause hearing, the court "must
assume the truth of the evidence presented; it may not 'weigh and measure asserted
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facts against potentially competing ones."' McCuistion, 174 Wash. 2d at 3 82 (quoting In
re Det. ofPetersen, 145 Wash. 2d at 797). "At the same time, the court can and must
determine whether the asserted evidence, if believed, is sufficient to establish the
proposition its proponent intends to prove." I d. (citing In re Det. ofPetersen, 145
Wash. 2d at 798). While the court does not weigh the evidence, it is entitled to consider
all of it. See In re Det. of Petersen, 145 Wash. 2d at 798.
In 2005, the legislature limited the type of evidence and the grounds a court
may consider when determining whether there was probable cause to believe an SVP
had '"so changed"' that release might be appropriate. LAWS OF 2005, ch. 344, § 1.
These amendments were in response to two cases where evidentiary hearings had
been ordered based on changes in "demographic factors," such as the offender's age,
which trial courts found rendered them not likely to reoffend if released. I d. (citing In
re Det. of Ward, 125 Wash. App. 381, 104 P.3d 747 (2005); In re Det. of Young, 120
Wash. App. 753, 86 P.3d 810 (2004)). The legislature declared that "a mere advance in
age or a change in gender or some other demographic factor after the time of
commitment does not merit a new trial proceeding under RCW 71.09.090." Id. The
legislature expressed concern that allowing new trial proceedings under RCW
71.09.070 and .090 based on such demographic changes "subverts the statutory focus
on treatment and reduces community safety by removing all incentive for successful
treatment participation in favor of passive aging and distracting committed persons
from fully engaging in sex offender treatment." Id. To avoid disincentivizing
treatment, the 2005 provisions stated that probable cause to believe someone has "'so
changed"' exists only when there is a "physiological change to the person, such as
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In re Pers. Restraint of Meirhofer, No. 89251-2
paralysis, stroke, or dementia, that renders the committed person unable to commit a
sexually violent act and this change is permanent" or when there is a "change in the
person's mental condition brought about through positive response to continuing
participation in treatment." !d.§ 2(4)(a), (b) (codified as RCW 71.09.090(4)(a),
(b )(i)-(ii)). Additionally, "a change in a single demographic factor, without more,
does not establish probable cause for a new trial proceeding." !d. § 2(4)( c) (codified
as RCW 71.09.090(4)(c)). We initially held these amendments unconstitutional on
due process and separation of powers grounds, but on reconsideration, we upheld
them. McCuistion, 174 Wash. 2d at 378, 398. The United States Supreme Court denied
certiorari. 133 S. Ct. 1460. The 2005 amendments and the McCuistion opinion are
especially relevant to Meirhofer because he has declined treatment and because his
risk to reoffend, as determined by actuarial tests, has largely been reduced because of
his advancing age.
In the 2010 annual report to the court, the State's expert, Dr. Saari, stated
he did not have sufficient information to diagnose Meirhofer with pedophilia
because "there is not sufficient evidence to indicate a clear pattern of sexual
attraction to prepubescent" children. PRP, App. Bat 12. Dr. Saari gave
Meirhofer the provisional diagnosis of"Rule Out Pedophilia." !d. at 11
(boldface omitted). 3 Dr. Saari diagnosed Meirhofer with paraphilia, NOS
3
It does not appear that Dr. Saari meant to indicate to the court that Meirhofer did not have
pedophilia, but merely that the doctor did not have sufficient evidence at the time to diagnose it.
First, Dr. Saari cautioned that "I suspect that past evaluators were likely correct in their
diagnostic opinion and that full disclosure of his history of sexual fantasy and sexual behavior
with minor[s] would reveal the presence of a pedophilic disorder," and that "[a] sexual history
polygraph and plethysmograph assessment may help to better clarify" the matter. PRP, App. B
at 12. Second, the qualifier "rule out" is a term of art used in the profession. As a treatise
explains:
5
In re Pers. Restraint of Meirhofer, No. 89251-2
hebephilia, paraphilia NOS nonconsent, and personality disorder NOS with
antisocial and borderline traits. Id. Dr. Saari reported that the Static-99R
actuarial risk assessment test suggested that offenders with similar static risk
factors as Meirhofer had "a 5-year sexual recidivism estimate of about 20% and
a 10-year sexual recidivism estimate of about 30%."4 Id. at 13. Based on
Meirhofer's dynamic risk factors, including the fact that "Meirhofer felt
entitled to rape teenage boys when he could not find a way to seduce them,"
and his own clinical judgment, Dr. Saari concluded that it was his "professional
The phrase "rule out" does not appear in DSM-IV and is not part of the vocabulary of
DSM. However, it is a common expression in psychiatric diagnosis and is often seen in
reports, especially from professionals with medical training or experience in medical
settings. There is often some confusion among nonphysicians as to the meaning of this
expression. "Rule out" is typically used to identify an alternative diagnosis that is being
actively considered, but for which sufficient data has not yet been obtained. For instance,
the diagnostic statement "Alcohol Abuse, rule out Alcohol Dependence," suggests that
the examiner has definitely concluded there is a drinking problem; that there is definitely
evidence supporting Alcohol Abuse; and that the more serious problem of Alcohol
Dependence may be present, but the available evidence is inconclusive. "Rule out" can
be thought of as a reminder or instruction to continue seeking the information which
would allow a diagnosis to be conclusively identified or eliminated from consideration
(for the present).
Alvin E. House, DSM-IV DIAGNOSIS IN THE SCHOOLS 33 (2002), available at
http://books.google.com/books?id=MtS2LjuU5AIC&q=33#v=snippet&q=33&f=false.
4
Static tests such as the Static-99R underestimate the probability of future sexual misconduct
because they do not actually measure the probability that an offender will commit another sexual
offense; they instead predict whether an offender will be caught for a new sexual offense by
being arrested, convicted, or, in some cases, by self-report recidivism. See generally Scott I.
Vrieze and William M. Grove, Multidimensional Assessment of Criminal Recidivism: Problems,
Pitfalls, and Proposed Solutions, 22 PsYCHOL. AssESS. 382, 384-85 (201 0); see also Static-99R
Clearinghouse, STATIC-99R SAMPLES FOR VIOLENT RECIDIVISM TABLES, available at
http://www.static99.org/pdfdocs/static-99RViolentRecidEstimates2010-04-29.pdf (describing
various sources of baseline recidivism data). Given that the vast majority of sexual crimes are
never reported, let alone result in arrest or conviction, this "30%" prediction likely
underestimates Meirhofer' s dangerousness.
6
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opinion that Mr. Meirhofer appears to continue to meet the definition of a
sexually violent predator." Id. at 11, 13, 15. Dr. Saari's 2011 report was
consistent and additionally observed that Mr. Meirhofer had been recently
suspended from his job in the kitchen at the Special Commitment Center after
he was caught making alcohol. Dr. Saari noted in the report that Meirhofer
reported he
did not see any problem with making the alcohol, except for the fact he got
caught. Prior to making the alcohol, he reportedly did not consider the potential
consequences or how it might negatively affect his chances of release from the
SCC. When I asked him why it is important to refrain from drinking, given his
history of offending while under the influence of substances, he said he did not
believe it is important for him to abstain from alcohol. More specifically, he
said, "Quite frankly, I never raped anyone when I was drinking, only when I
was under the influence of methamphetamine did I do that."
PRP, App. Gat 9. Once again, Dr. Saari concluded that Meirhofer continued to meet
the definition of an SVP.
Also in 20 11, before we withdrew our first McCuistion opinion, a second
psychologist, Dr. Rosell, opined that there was insufficient evidence that Meirhofer
suffered from pedophilia, as currently defined in the academic literature, and that his
risk ofreoffending had dropped significantly due to his age. Dr. Rosell diagnosed
Meirhofer with alcohol and amphetamine dependence and a personality disorder with
antisocial traits. Perhaps sensitive to the legislature's response to Young and Ward
and to the pending constitutional challenge to that response in McCuistion, Dr.
Rosell's report said that under "pre-2005 standards," Meirhofer "no longer meets the
criteria of sexual violent predator based on the lack of evidence of a current paraphilic
disorder as well as the low risk found on the actuarial instruments utilized." PRP,
7
In re Pers. Restraint of Meirhofer, No. 89251-2
App. D at 29. He offered no opinion on whether Meirhofer met the criteria under the
2005 legislative standards.
Based on Dr. Rosell's report and our then recently published opinion in
McCuistion, the trial court found that Meirhofer had presented prima facie evidence
that "[h]is condition has so changed that he no longer meets the criteria of a sexually
violent predator." PRP, App. Eat 2. The trial court stayed its order pending this
court's resolution of the motion for reconsideration in McCuistion. A few months
later, this court withdrew its opinion in McCuistion, and in 2012, we upheld the 2005
amendments. McCuistion, 174 Wash. 2d at 398. After we withdrew our first
McCuistion opinion, the trial judge found DSHS had met its prima facie burden of
showing that Meirhofer continued to meet the statutory definition of an SVP and that
Meirhofer had failed to present sufficient prima facie evidence that he did not. MDR
(June 15, 2012), App. I at 2 (Oct. 10, 2011 order). Thus, it did not order the
evidentiary proceeding Meirhofer seeks. !d.
Meirhofer sought discretionary review of that October order and challenged his
continued confinement by way of a personal restraint petition. The Court of Appeals
consolidated the two cases and denied relief in an unpublished opinion. In re Pers.
Restraint of Meirhofer, noted at 175 Wash. App. 1049, 2013 WL 3867834. We granted
review to determine whether Meirhofer was entitled to an evidentiary proceeding
under chapter 71.09 RCW or, if not, whether he was entitled to collateral relief.
We affirm.
8
In re Pers. Restraint ofMeirhofer, No. 89251-2
ANALYSIS
I. APPEAL OF THE RCW 71.09.090 SHOW CAUSE HEARING
Under the SVP act, "there are two possible statutory ways for a court to
determine there is probable cause to proceed to an evidentiary hearing ... (1) by
deficiency in the proof submitted by the State, or (2) by sufficiency of proof' by the
detainee that he or she "no longer suffers from a mental abnormality or personality
disorder" or that any mental abnormality or personality disorder "would not likely
cause the prisoner to engage in predatory acts of sexual violence." In re Det. of
Petersen, 145 Wash. 2d at 798. We review the legal conclusions the trial court drew
from that evidence de novo. Id. at 799. Meirhofer contends he succeeds on both
grounds.
First, Meirhofer contends the State's evidence that he "continues to meet the
definition of a sexually violent predator" was deficient. See RCW 71.09 .090(2)(b ).
He stresses that the State's expert did not diagnose him with pedophilia and that an
actuarial risk assessment test found his risk of reoffending to be 30% over the next 10
years, among other things. See PRP, App. Gat 10, 12. Considering the experts'
conclusions and the reasons recited in the reports, we agree with the courts below that
the State has met its statutory prima facie burden. An SVP is "any person who has
been convicted of ... a crime of sexual violence and who suffers from a mental
abnormality or personality disorder which makes the person likely to engage in
predatory acts of sexual violence if not confined in a secure facility." RCW
71.09.020(18). It is undisputed that Meirhofer has been convicted of sexually violent
crimes. Meirhofer, 2001 WL 1643535. It is also undisputed that Meirhofer has been
9
In re Pers. Restraint of Meirhofer, No. 89251-2
currently diagnosed by licensed forensic psychologists with both mental abnormalities
and personality disorders, including paraphilia NOS (nonconsent) and personality
disorder NOS with antisocial and borderline features. PRP, App. Gat 10.
Meirhofer argues that because the State's experts originally testified he suffered
from pedophilia and now the State's expert found insufficient evidence for that
diagnosis, the State has not met its burden. His argument is unpersuasive. First, this
court has affirmed commitment based on paraphilia NOS nonconsent and antisocial
personality disorder, which are essentially Meirhofer's remaining diagnoses. See In re
Det. of Stout, 159 Wash. 2d 357, 363, 150 P.3d 86 (2007). Second, we rejected a similar
challenge to continued civil commitment after an insanity acquittal when the
detainee's diagnosis changed in State v. Klein, 15 6 Wash. 2d 103, 120-21, 124 P .3d 644
(2005). While we cautioned that '" [d]ue process requires that the nature of the
commitment bear some reasonable relation to the purpose for which the individual is
committed,"' we found sufficient connection from the "original diagnosis of
'psychoactive substance-induced organic mental disorder' ... and the current
diagnosis of polysubstance dependence" to justify continued commitment. !d. (first
alteration in original) (quoting Foucha v. Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780,
118 L. Ed. 2d 437 (1992)). We observed that "the subjective and evolving nature of
psychology may lead to different diagnoses that are based on the very same
symptoms, yet differ only in the name attached to it." !d. at 120. Similar principles
apply here. Without more, the change from a diagnosis of pedophilia to a "rule out
pedophilia" and hebephilia diagnosis is not sufficient to require a new evidentiary
proceeding.
10
In re Pers. Restraint ofMeirhofer, No. 89251-2
Meirhofer also argues that hebephilia may not act as a qualifying mental
abnormality or personality disorder under the SVP act. He calls our attention to a
recent Illinois Court of Appeals case where the court required a Frye 5 hearing before
admitting evidence that an SVP respondent suffered from hebephilia, which is not a
condition listed in the American Psychiatric Association's Diagnostic and Statistical
Manual ofMental Disorders. In re Det. ofNew, 2013 IL App (1st) 111556, 992
N.E.2d 519, 372 Ill. Dec. 677, 688 (2013), appeal granted, 2 N.E.3d 1045, 377 Ill.
Dec. 764 (2013). New had appealed his commitment arguing, among other things,
that hebephilia was not a diagnosis generally accepted in the scientific community.
The Illinois Court of Appeals reversed his commitment and remanded for a Frye
evidentiary hearing, noting that "if a respondent in an SVP proceeding does not suffer
from an actual mental disorder, then there is nothing to cure, and commitment is
pointless." Id. But regardless of whether hebephilia is an accepted diagnosis in the
relevant scientific community (a question we need not decide), the State presented
sufficient prima facie evidence that Meirhofer has consistently suffered from
paraphilia NOS nonconsent and a personality disorder. This is sufficient to show that
Meirhofer "suffers from a mental abnormality or personality disorder," RCW
71.09.020(18), as required for continued confinement. 6
The State has also met its prima facie burden of showing Meirhofer is likely to
reoffend if not confined. RCW 71.09.090(2)(b). Meirhofer is correct that the actuarial
5Frye v. United States, 54 App. D.C. 46,293 F. 1013 (1923).
6
For similar reasons, we find Meirhofer's contention that he is entitled to a jury trial on whether
he suffers from hebephilia unavailing based on the facts of this case. We recognize that the
dissent finds the change in professional terminology from pedophilia to hebephilia significant.
Given that Meirhofer has two other qualifying conditions, we do not find this an appropriate case
to explore the issue.
11
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instmments the State's expert used suggest his risk ofreoffense is 30% in the next 10
years. However, the SVP act does not limit experts to the results of actuarial tests and
there is no requirement that "the SVP will reoffend in the foreseeable future." In re
Det. ofMoore, 167 Wash. 2d 113, 125,216 P.3d 1015 (2009). While Meirhofer is
correct that we observed in a case considering the admissibly of actuarial instmments
in SVP proceedings that the State "asserts [they] are more reliable than clinical
judgment," we never found that they were better evidence than clinical judgment. In
re Det. of Thorell, 149 Wash. 2d 724, 757, 72 P.3d 708 (2003). Based on static and
dynamic risk factors and his own clinical judgment, the State's expert opined that
"there has been no apparent change in [Meirhofer' s] mental condition that would
indicate a lowered risk for sexual re-offense." PRP, App. Gat 14. This is amply
supported by the evidence reviewed in Dr. Saari's report. The State has met its prima
facie burden under RCW 71.09.090(2)(b).
Second, Meirhofer contends that he has shown probable cause that his
condition has "so changed" that he no longer meets the criteria for a sexually violent
predator. See In re Det. ofPetersen, 145 Wash. 2d at 798; RCW 71.09.090(2)(c).
Again, Meirhofer suggests that the change in diagnosis from pedophilia to hebephilia
is significant. Whether or not it might be significant if it were the only diagnosis,
even Meirhofer' s own expert found that he suffered from a personality disorder with
antisocial traits. PRP, App. D at 20. Moreover, under the statutory standards, only a
"change in the person's mental condition brought about through positive response to
continuing participation in treatment" is sufficient under the act. RCW
71.09.090(4)(b)(ii). Any change in Meirhofer's condition was not driven by any
12
In re Pers. Restraint of Meirho.fer, No. 89251-2
"positive response to continuing participation in treatment" as Meirhofer has refused
to participate in treatment. Instead, it appears to be driven by dispute within the
psychiatric establishment and refinement in the relevant diagnostic criteria. See PRP,
App. J, Ex. A (Allen Frances & Michael B. First, Hebephilia Is Not a Mental
Disorder in DSM-JV-TR and Should Not Become One in DSM-5, 39 J. AM. ACAD.
PSYCHIATRY & L. 78, 84 (2011)).
Perhaps sensitive to the ongoing legal conflict, Meirhofer' s expert couched his
conclusion that Meirhofer had "so changed" as to justify further proceedings in very
limited terms:
Mr. Meirhofer was found to be an SVP based on the diagnoses of pedophilia.
The most recent annual review by Dr. Saari questions this diagnoses and feels
there is a need to rule it out. He has supplemented that diagnoses with
paraphilia NOS, hebephilia which as previously mentioned is questionable
whether it exists as a mental abnormality as opposed to a descriptor of
behavior.
I have been asked to address whether Mr. Meirhofer's mental
abnormality has "so changed" as to whether he continues to meet the statutory
definition of an SVP. As mentioned, recently the Washington State Supreme
Court has ruled that the amendments of 2005 which restricted the definition of
"so changed" should be reversed to pre-2005 standards. Therefore, it is my
opinion that Mr. Meirhofer no longer meets the criteria of sexual violent
predator based on the lack of evidence of a current paraphilic disorder[?] as well
as the low risk found on the actuarial instruments utilized.
PRP, App. D at 29. Given Dr. Rosell's reliance on Meirhofer's age in determining his
risk of recidivism, given the fact that Meirhofer has not undergone treatment, and
given the fact no expert has suggested that Meirhofer meets the current statutory
7 Dr. Rosell does not explain why he rejected the paraphilia NOS nonconsent diagnosis.
13
In re Pers. Restraint of Meirhofer, No. 89251-2
requirements for an evidentiary proceeding, the trial court did not err in declining to
order one. 8
II. PERSONAL RESTRAINT PETITION
Meirhofer also challenges his continued confinement by way of a personal
restraint petition, largely reiterating his substantive arguments above. The State
responded that relief by way of a personal restraint petition is not available. While we
agree with the State that Meirhofer is not entitled to relief on the merits, we stress that
there are no special rules prohibiting those committed under the SVP act from filing
otherwise meritorious personal restraint petitions. "Personal restraint petitions are
modern version of ancient writs, most prominently habeas corpus, that allow
petitioners to challenge the lawfulness of confinement." In re Pers. Restraint of Coats,
173 Wash. 2d 123, 128, 267 P.3d 324 (2011) (citing Toliver v. Olsen, 109 Wash. 2d 607,
609-11, 746 P.2d 809 (1987)). But relief by way of a personal restraint petition is
extraordinary. See id. at 132 (citing In re Pers. Restraint of Cook, 114 Wash. 2d 802,
810-12, 792 P.2d 506 (1990)). A personal restraint petition is not a substitute for
statutory avenues for review, and "[t]o prevent it from becoming a substitute for an
appeal, and to protect the finality of judgments, this court has imposed significant
threshold, prima facie burdens on the petitioner before the merits of the substantive
8
The dissent suggests that Meirhofer is entitled to a new evidentiary hearing because "it is
reasonably possible that his change in diagnoses could lead a reasonable trier of fact to believe
that he is no longer suffering from a mental abnormality that renders him dangerous." Dissent at
11. But under the statute, such changes are a basis for an evidentiary hearing only when the
"change in the person's mental condition [was] brought about through positive response to
continuing participation in treatment" and not "a change in a single demographic factor." RCW
71.09.090(4)(b)(ii), (4)(c). Meirhofer has not participated in treatment, so any change in his
diagnoses cannot stem from that. We upheld the facial constitutionality of this statute in
McCuistion, 174 Wash. 2d at 398. The dissent does not show that McCuistion should be overruled
or not applied.
14
In re Pers. Restraint of Meirhofer, No. 89251-2
claim will be considered." In re Pers. Restraint of Grantham, 168 Wash. 2d 204, 211,
227 P.3d 285 (2010). Among other things, reliefis limited to those who meet the
requirements of RAP 16.4, including its requirement that the petitioner show that
"other remedies which may be available to petitioner are inadequate." RAP 16.4(d).
Chapter 71.09 RCW creates an avenue for review, which Meirhofer must show is
inadequate in his case.
Meirhofer contends that if he is not entitled to an evidentiary hearing under
RCW 71.09.090, he is entitled to relief in a personal restraint petition as a matter of
due process "because new evidence shows the basis for Mr. Meirhofer's original
commitment no longer exists and his continuing confinement is unconstitutional
absent a jury trial on the issue of whether the State's new alleged bases for
confinement are sufficient." Suppl. Br. ofPet'r at 19 (citing RAP 16.4(c)(2), (3)). 9
While we are dubious that these provisions apply given that Meirhofer is restrained
pursuant to a 2000 order not before us, a -personal restraint petition could conceivably
be available to Meirhofer under RAP 16.4(c)(7), which authorizes the petition when
"[o]ther grounds exist to challenge the legality of the restraint of petitioner." He
essentially argues that the statutory avenue is inadequate because within it, he could
9
(2) The conviction was obtained or the sentence or other order entered in a criminal
proc~eding or civil proceeding instituted by the state or local government was imposed or
entered in violation of the Constitution of the United States or the Constitution or laws of
the State of Washington; or
(3) Material facts exist which have not been previously presented and heard, which in
the interest of justice require vacation of the conviction, sentence, or other order entered
in a criminal proceeding or civil proceeding instituted by the state or local government.
RAP 16A(c).
15
In re Pers. Restraint of Meirhofer, No. 89251-2
not show probable cause that he had been "so changed" as to proceed to an
evidentiary hearing under RCW 71.09.090(2)(c)(ii), and that he was not entitled to
have the trial judge weigh his evidence against the State's in determining whether he
was still appropriately confined under RCW 71.09.090(2)(c)(1). But we effectively
rejected similar arguments in McCuistion, 174 Wash. 2d 369. McCuistion argued "that
because he presented prima facie evidence that he no longer meets the definition of a
SVP," as Meirhofer has, "he has both a statutory and constitutional right to an
evidentiary hearing." Id. at 382. We disagreed.Id. 10
We began with first principles. "Under the due process clause of the
Fourteenth Amendment, an individual subject to civil commitment is entitled to
release upon a showing that he is no longer mentally ill or dangerous." !d. at 384
(citing Foucha, 504 U.S. at 77-78). "However, once a fact-finder has determined that
an individual meets the criteria for commitment as an SVP, the court accepts this
initial conclusion as a verity in determining whether an individual is mentally il1 and
dangerous· at a later date." !d. at 385 (citing Burke v. Pepsi-Cola Bottling Co. of
Yakima, 64 Wash. 2d 244, 246, 391 P.2d 1-94 (1964)). "Accordingly, where an
individual was found beyond reasonable doubt to be mentally ill and dangerous at the
time of his commitment trial, a showing that he no longer satisfies the constitutional
criteria for confinement necessarily requires a showing of change." !d. (citing LAws
OF 2005 ch. 344, § 1). We rejected McCuistion's contention that he was
10
McCuistion brought many challenges. Among other things, he maintained that his condition ..
had changed because of his age and his abstention from alcohol and that he was entitled to an
evidentiary hearing notwithstanding the statutory amendments that limited the grounds for such
hearings. McCuistion, 174 Wash. 2d at 377-78. We considered and rejected all of McCuistion's
arguments. ld. at 398.
16
In re Pers. Restraint of Meirhofer, No. 89251-2
constitutionally entitled to an evidentiary hearing based on the evidence he presented
on age and recidivism, concluding that "[t]here is no substantive due process right to a
full annual evidentiary hearing based upon a mere showing of a change in a single
demographic factor." Id. Thus, he did not show that his restraint was unlawful on
those grounds.
We also rejected McCuistion's contention that the 2005 amendments were
facially unconstitutional·because (relevant to this case) they limited detainees seeking
to prove their mental condition had changed due to a positive response to treatment.
Id. at 387. Again, similarly to Meirhofer, McCuistion argued that requirement
violated the constitution because it created the possibility someone could be detained
who was not '"currently likely to commit sexually violent offenses due to a mental
disorder."' Id. (quoting trial court record). We rejected that argument on the grounds
the SVP act provided adequate constitutional protections:
If the individual no longer meets the definition of a SVP, then "the
secretary shall authorize the person to petition the court for conditional
release" or "unconditional discharge" and the court "shall within forty-
five days order a hearing." RCW 71.09.090(1). This statutory scheme
comports with substantive due process because it does not permit
continued involuntary commitment of a person who is no longer mentally
ill and dangerous.
McCuistion, 174 Wash. 2d at 388. Meirhofer makes no 'attempt to show that McCuistion
should be overruled or that RCW 71.09.090 cannot be constitutionally applied to him.
The State is required to review the condition of every detainee at least annually and,
when challenged, present prima facie evidence that continued commitment is
statutorily and constitutionally appropriate. In re. Det. ofPetersen, 145 Wash. 2d at 809-
17
In re Pers. Restraint of Meirhofer, No. 89251-2
10. If the secretary ofDSHS determines continued commitment is not appropriate,
the detainee is allowed to petition for an evidentiary hearing without having to first
show cause. !d. at 810. Meirhofer has not shown that these statutory remedies are
inadequate as applied to him. 11 Thus, his due process challenge fails. Accordingly,
we dismiss his personal restraint petition under RAP 16.4. 12
CONCLUSION
Meirhofer did not make a prima facie showing that his condition had "so
changed" to justify an evidentiary hearing under the SVP act. Nor has he shown that
the statutory procedures are inadequate to safeguard against deprivation of his
constitutional rights. We affirm.
11
We respectfully disagree with the dissent that the mere fact that Meirhofer is not entitled to
relief under RCW 71.09.090(4)(b) means that he is entitled to collateral relief. See Dissent at 10-
11. The SVP act provides at least two other ways Meirhofer could proceed to an evidentiary
hearing on his claim that he no longer qualifies as an SVP. First, the secretary ofDSHS could
request the hearing under RCW 71.09.090(1). Second, the State could fail to present prima facie
evidence that he still meets the definition of an SVP under RCW 71.09.090(2)(c). It may be that
these alternative statutory mechanisms are inadequate, but Meirhofer makes no attempt to
establish this.
12
Given our resolution, we deny the State's motion to strike as moot.
18
In re Pers. Restraint of Meirhofer, No. 89251-2
/
WE CONCUR:
19
In re Pers. Restraint of Meirhofer (Alan)
(Wiggins, J. dissenting)
No. 89251-2
WIGGINS, J. (dissenting)-! agree with the majority that Alan Meirhofer has not
proved his entitlement to a full evidentiary hearing under RCW 71.09.090 because
subsection .090(4)(b) permits a hearing only upon proof of either of two facts: a
physiological change has rendered the detainee permanently unable to commit a
sexually violent act or there has been a "change in the person's mental condition
brought about through positive response to continuing participation in treatment which
indicates that the person meets the standard for conditional release." RCW
71.09.090(4)(b)(ii). Meirhofer has failed to prove either type of change.
Rather than arguing his condition changed physiologically or as a positive
response to treatment, Meirhofer argues that the basis for his commitment changed
when the diagnoses describing his mental condition changed. The majority, having
held that Meirhofer has no recourse under the statute, ironically holds that Meirhofer
has not proved that "these statutory remedies are inadequate as applied to him."
Majority at 13, 18. Accordingly, the majority concludes that Meirhofer cannot bring a
personal restraint petition to challenge the constitutionality of his continued detention
as a sexually violent predator (SVP) because the statute provides Meirhofer with
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
"'[o]ther grounds ... to challenge the legality"' of his restraint. Majority at 15 (quoting
RAP 16.4(c)(7)).
I disagree. A statutory remedy that does not allow a challenge to the
constitutionality of restraint cannot be an adequate remedy. Moreover, the legislature
cannot restrict the right of a person to challenge his or her restraint through a personal
restraint petition. In a personal restraint petition, we provide relief for those restrained
when the manner of the restraint is unconstitutional. RAP 16.4(c). It is unconstitutional
to impose a civil commitment on someone who is not both mentally ill and dangerous.
Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992);
In re Pers. Restraint of Young, 122 Wash. 2d 1, 27, 857 P.2d 989 (1993).
Both Meirhofer and the State presented evidence at Meirhofer's annual show
cause hearing that his diagnoses have changed since his commitment hearing and
that his risk of reoffending has declined substantially. These changes are significant:
there is a reasonable possibility that a reasonable juror would decline to find, beyond
a reasonable doubt, that Meirhofer continues to be mentally ill and dangerous. I would
reverse the trial and appellate courts and remand for an evidentiary proceeding. For
these reasons, I respectfully dissent.
DISCUSSION
In order to be committed, an SVP must be diagnosed with a mental illness that
renders them dangerous. Civil confinement is subject to strict scrutiny because it is a
massive curtailment of liberty, Young, 122 Wash. 2d at 26. Liberty can be curtailed only
by a narrowly drawn, compelling state interest. State v. McCuistion, 174 Wash. 2d 369,
2
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
275 P.3d 1092 (2012), cert. denied, 133 S. Ct. 1460, 185 L. Ed. 2d 368 (2013). A
state's interests are narrowly tailored to justify civil commitment only when the state
can demonstrate a person continues to be mentally ill and dangerous. Foucha, 504
U.S. at 75-76; Young, 122 Wash. 2d at 27. Without a finding of scientifically accepted
mental illness and dangerousness, SVP commitment would constitute double
jeopardy, continuing to punish those who have already served a sentence for their
criminal behavior. See Young, 122 Wash. 2d at 71 (Johnson, J., dissenting). Meirhofer's
diagnoses have changed since his commitment trial.
I. Relief under a Personal Restraint Petition
The SVP statute does not contemplate the situation before us. A state cannot
continue to confine someone who is no longer mentally ill and dangerous. /d. The
statute addresses this by providing periodic review and release mechanisms for
individuals. RCW 71.09.090. If the detainee has changed through treatment or
physical injury, he or she is entitled to a new hearing to determine if he or she
continues to meet the definition of an SVP. RCW 71.09.090(4). However, even if
Meirhofer's condition has not changed as a result of treatment, the change in his
diagnoses may mean that he is no longer mentally ill and dangerous.
Contrary to the State's assertions, petitioners are not limited to challenging their
confinement through statutes that do not contemplate their circumstances.
Importantly, personal restraint petitions are not motions for reconsideration and they
are not substitutes for direct review; the relief they seek is collateral. "The whole
purpose of collateral review is to provide a forum for potentially meritorious prisoners'
3
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
claims." In re Pers. Restraint of James, 96 Wash. 2d 847, 855, 640 P.2d 18 (1982) (Utter,
J., concurring). "Though it does tax the judicial system to provide such collateral
review, its proven historical value looms much larger than the particular economic
exigencies with which we as judges are now beset." /d. (footnote omitted).
When alternative grounds of relief are inadequate and a petition is not barred
by RCW 10.73.090, RAP 16.4 unconditionally allows persons under restraint to raise
constitutional claims. James, 96 Wash. 2d at 853; RAP 16.4(a). Here, the alternative
grounds for relief are inadequate: Meirhofer argues that his diagnoses changed,
altering the justification for his commitment. Pers. Restraint Pet. (PRP) at 8. The
statute contemplates relief only in cases in which the condition of the person has
changed, not changes in the diagnoses justifying commitment.
To challenge confinement through a personal restraint petition, a detainee must
present a sufficiently significant change, such that a reasonable juror could conclude
that the detainee is no longer mentally ill and dangerous. Meirhofer's restraint may be
unlawful because the basis for Meirhofer's original commitment no longer exists.
II. Change in Meirhofer's Diagnoses
The court will grant relief in a personal restraint petition if the petitioner is under
restraint and the restraint is unlawful. RAP 16.4(a); In re Pers. Restraint of Grantham,
168 Wash. 2d 204, 212-13, 227 P.3d 285 (201 0). Meirhofer demonstrates two reasons
why he is unlawfully restrained and entitled to relief. First, Meirhofer's current
diagnoses are different from the original diagnoses that the jury used to classify him
4
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
as an SVP. Second, two of Meirhofer's diagnoses are not accepted by the medical
community.
A. Meirhofer's diagnoses have changed since his commitment trial
Two licensed psychologists evaluated Meirhofer prior to his commitment trial;
both diagnosed him with pedophilia and amphetamine dependence. In addition to
those diagnoses, one of the psychologists diagnosed Meirhofer with paraphilia, not
otherwise specified (NOS)-nonconsent, and the other diagnosed him with personality
disorder, NOS, with antisocial traits. Meirhofer continued to be evaluated annually for
nine years with similar diagnostic results: (A) pedophilia, (B) paraphilia, NOS,
nonconsent, and (C) personality disorder, NOS, antisocial.
In 2010, Meirhofer's diagnoses changed. The State's expert diagnosed him
with: (not-A) "Rule Out Pedophilia," (B) paraphilia, NOS, nonconsent, (C) personality
disorder, NOS, antisocial, and (D) paraphilia, NOS, hebephilia. PRP, Apps. B, G. In
addition, an expert retained by Meirhofer made two diagnoses, neither of which was
a sexual disorder. After reviewing the commitment documents, interviewing Meirhofer,
and using actuarial assessments, Meirhofer's expert diagnosed him with (1) alcohol
dependence and amphetamine dependence, remission in controlled environment and
(2) personality disorder, NOS, with antisocial traits by history. PRP, App. D.
We can chart these diagnoses and their consequences, thus:
Original diagnoses: A + B + C = sexually violent predator
2010-11 diagnoses: not-A+ B + C + D = ?
5
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
The State's position is that (A+ B + C) yields exactly the same result as (not-A+ B +
C + D): therefore, Meirhofer is still an SVP. The State's position is fuzzy logic, or
perhaps fuzzy psychology.
B. Meirhofer is currently confined for "mental illnesses" that are not recognized
by the medical community
The majority justifies Meirhofer's continued confinement by relying on mental
illnesses that are not accepted by the majority of the scientific community. However,
the mental illness must be a legitimate illness widely recognized by the psychiatric
community. This is made clear in Kansas v. Hendricks, in which the United States
Supreme Court ruling upheld the Kansas SVP commitment scheme in a five-to-four
decision. 521 U.S. 346, 358, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501 (1997).
Although divided on the holding, all nine justices agreed that civil commitment is
constitutional only if we can distinguish individuals who are mentally disordered from
those who are mere criminals. /d. at 360 (the disorder must be one that "the psychiatric
profession itself classifies as a serious mental disorder."), 373 (Kennedy, J.,
concurring) (confinement cannot be based on a mental abnormality that is "too
imprecise"), 375 (Breyer, J., dissenting) (the statute is constitutional, inter alia,
because pedophilia is a "serious mental disorder").
Science must have "gained general acceptance in the particular field in which
it belongs" before it is admitted in trial. Frye v. United States,
54 App. D.C. 46, 293 F. 1013, 1014 (1923). One way to determine "general
acceptance" with respect to psychiatric disorders is to refer to the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders
6
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
(DSM). See, e.g., Hall v. Florida,_ U.S. _, 134 S. Ct. 1986, 1991, 1994, 2000, 188
L. Ed. 2d 1007 (2014) (determining the meaning of "intellectual disability" using the
DSM); State v. Greene, 139 Wash. 2d 64, 71, 984 P.2d 1024 (1999) (the DSM is an
authoritative source which '"reflect[s] a consensus of current formulations of evolving
knowledge' in the mental health field."' (quoting State v. Greene, 92 Wash. App. 80, 98,
960 P.2d 980 (1998) (quoting AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS at xxvii (4th ed. 1994) (0SM-IV))). 1 In 2010, the State's
expert diagnosed Meirhofer with two disorders that are not in previous or current
versions of the DSM: (1) hebephilia and (2) paraphilia, NOS, nonconsent.2 See DSM-
IV at XXVii; AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 566-67 (4th rev. ed. 2000) (OSM-IV-TR); AM. PSYCHIATRIC Ass'N, DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 697 (5th ed. 2013) (OSM-5). Likewise,
the international standard diagnostic tool does not include a code for hebephilia or
paraphilia, not otherwise specified, nonconsent. World Health Organization,
International Statistical Classification of Diseases and Related Health Problems §
F65.4 (1Oth rev. ed. 2013) (ICD-1 0),
'
available at http://www.cdc.gov/nchs/data/dvs/2e_volume1_2013.pdf. 3 When neither
1 It would be an overstatement to say that only disorders listed in the DSM constitute a mental
illness under which a person can be committed as an SVP.
2 Hebephilia and paraphilia, NOS, nonconsent describe sexual urges, which, by themselves
are not dangerous. Only if these urges are acted on do they become a serious crime. Allen
Frances & Michael B. First, Hebephilia Is Not a Mental Disorder in DSM-IV- TR and Should
Not Become One in OSM-5, 39 J. AM. ACAD. PSYCHIATRY & L. 78, 84 (2011).
3 The ICD-1 0 does include "pedophilia," defined as "[a] sexual preference for children, boys
or girls or both, usually of prepubertal or early pubertal age." ICD-1 0, § F65.4.
7
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
the American psychiatric community nor the international medical community
recognizes a disorder, we should not do so either.
Paraphilia, NOS, nonconsent and hebephilia are not listed in the DSM-IV or
DSM-5. The essential features of paraphilia are "recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the
suffering or humiliation of oneself or one's partner, or 3) children or other
nonconsenting persons .... " DSM-IV-TR at 566. 4 The explicit diagnosis of "Paraphilia
Not Otherwise Specified" applies to paraphilias that are less frequently encountered,
such as necrophilia, sexual attraction to corpses and klismaphilia, receiving sexual
pleasure from introducing liquids into the rectum or colon. /d. at 576 (boldface
omitted). The diagnosis "paraphilia not otherwise specified nonconsent" is not
included in the list of paraphilias nor was it adopted in the DSM-5. In fact, the DSM-5
explicitly rejected '"coercive paraphilia"' as a diagnosis. Allen Frances, Should Having
Antisocial Personality Qualify a Rapist for SVP Commitment?~ PSYCHIATRIC TIMES~
July 15, 2011, http://www.psychiatrictimes.com/couch-crisis/should-having-antisocial-
personality-qualify-rapist-svp-commitment. Similarly, "hebephilia," defined as attraction to
pubescent children, is not listed in the DSM-5 or previous versions. The DSM-5 Sexual
Disorders Workgroup considered adding hebephilia to the pedophilia category but
explicitly rejected the addition because it was based on imprecise and incomplete
4 Paraphilia has eight categories: exhibitionism, fetishism, frotteurism, pedophilia, sexual
masochism, sexual sadism, transvestic fetishism, and voyeurism. DSM-IV-TR at 566-67; see
a/so DSM-5 at 685-705.
8
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
research. Allen Frances & Michael B. First, Hebephilia Is Not a Mental Disorder in
OSM-IV-TR and Should Not Become One in OSM-5, 39 J. AM. ACAD. PSYCHIATRY & L.
78, 82-84 (2011 ). 5
Ill. Meirhofer Is Entitled to an Evidentiary Hearing
The majority dismisses Meirhofer's personal restraint petition on the basis of
Meirhofer's 2000 restraint order, this court's decision in McCuistion, and an
inaccessible avenue for statutory relief. I address these arguments in turn.
Relief is available under RAP 16.4 because Meirhofer is currently restrained.
The majority states that RAP 16.4(c)(2) and (3) likely do not apply because Meirhofer's
2000 restraint order is "not before us." Majority at 15. However, Meirhofer is
challenging his current confinement; he is not challenging the 2000 commitment order.
A state's interests are narrowly tailored to justify civil commitment only when the state
can demonstrate a person continues to be mentally ill and dangerous. Foucha, 504
U.S. at 75-76; Young, 122 Wash. 2d at 27. Annual review is one way of ensuring that the
"'nature and duration of commitment bear some reasonable relation to the purpose
for which the individual is committed.'" Jones v. United States, 463 U.S. 354, 368, 103
S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (quoting Jackson v. Indiana, 406 U.S. 715, 738,
92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972)). But it is not the only way. Meirhofer is lawfully
subject to civil restraint only so long as he continues to be both mentally ill and
5 The proposed distinction between pedophilia and hebephilia was narrow. Pedophilia
describes those individuals who are attracted to prepubescent children (those with downy
pubic hair or no pubic hair), while hebephilia would have described those who are attracted
to pubescent children (or those with coarse pubic hair). Frances & First, supra, at 83.
9
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
dangerous; his current restraint cannot rest solely on the 2000 order. Foucha, 504
U.S. at 75-76; Young, 122 Wash. 2d at 27. As such, he may seek relief under RAP
16.4(c).
The majority incorrectly relies on this court's decision in McCuistion to deny
Meirhofer a constitutional right to an evidentiary trial. Majority at 15-16. While the
majority correctly reads paragraph 6 of that decision in noting that McCuistion brought
"many challenges," majority at 16 n.1 0, it overlooks the conclusions the trial court
reached after considering those arguments, recited in paragraph 7:
The trial court dismissed Dr. Coleman's report as "essentially a re-
argument of the original finding that Mr. McCuistion is a sexually violent
predator" and reasoned that Dr. Coleman's disagreement "with past
examiners and fact-finders does not, itself, make his opinion the correct
one." The court further explained that "[t]he change in his behavior within
the confines of a secure facility does not demonstrate that his mental
disorder has been changed in any way."
McCuistion, 174 Wash. 2d at 377-78 (alteration in original) (citations omitted).
Furthermore, the majority ignores the grounds for our decision-we specifically
concluded that McCuistion's argument consisted of little more than a collateral attack
on the original finding that McCuistion was an SVP and that his other arguments were
merely a series of "vague assertions," "bare assertion," and declarations that, even if
we were to consider, would have been insufficient to make a prima facie showing of
change. /d. at 382-84. McCuistion is distinguishable from Meirhofer; Meirhofer does
not challenge his initial commitment, and Meirhofer's change in diagnosis could lead
a reasonable juror to conclude he is no longer mentally ill and dangerous.
10
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
Finally, we disagree with the majority's dismissal of Meirhofer's personal
restraint petition under RAP 16.4(d) because, according to the majority, the secretary
of the Washington State Department of Social and Health Services (DSHS) can
authorize the detainee to petition for conditional release without first having to show
cause. Majority at 17-18; see also In re Oet. of Petersen, 138 Wash. 2d 70, 81, 980 P.2d
1204 (1999). The secretary of DSHS does not provide a meaningful avenue of relief
that is sufficient to preclude Meirhofer from seeking relief under RAP 16.4(d). It would
violate due process to allow DSHS to preclude a detainee from accessing the courts.
The jailor cannot also be the independent judiciary.
IV. Meirhofer Is Entitled to Relief
An SVP may challenge confinement through a personal restraint petition when
changes occur that fall outside the statute. It is a question of fact whether a change in
the diagnoses leads to the conclusion that the SVP is no longer mentally ill and
dangerous. I would hold that if a detainee presents a sufficiently significant change,
such that there is a reasonable possibility that a trier of fact could find the person is
no longer suffering from a mental abnormality that renders him or her dangerous, then
the detainee is entitled to a new evidentiary hearing to determine if he or she continues
to meet the constitutional criteria for confinement.
Meirhofer meets the test: it is reasonably possible that his change in diagnoses
could lead a reasonable trier of fact to believe that he is no longer suffering from a
mental abnormality that renders him dangerous. In considering Meirhofer's case, we
11
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
examine the evidence that would be presented to the jury to make the case that
Meirhofer is no longer mentally ill and dangerous.
The jury would consider if Meirhofer continues to be mentally ill. The jury would
be told that Meirhofer was diagnosed with paraphilia, NOS, nonconsent, and
paraphilia, NOS, hebephilia. They would learn that neither diagnosis is found in the
pages of the DSM. They would hear of the controversial nature of these two diagnoses
and the rejection of both by the national and international psychiatric communities.
The jury would then consider Meirhofer's third diagnosis, antisocial disorder, and
would hear that the DSM assigns antisocial personality disorder to individuals who
habitually violate the rights of others without remorse. The definition includes four
diagnostic criteria and seven subfeatures, including failure to obey the laws. The jury
would be told that under this assessment, Meirhofer will likely never lose the diagnosis
of antisocial personality disorder, regardless of his participation in treatment. They
would probably be told that the United States Supreme Court explicitly rejected the
assertion that a person with previous criminal history plus a diagnosis of "antisocial
personality that sometimes leads to aggressive conduct ... may be held indefinitely."
Foucha, 504 U.S. at 82. Notably, the jury would not hear that Meirhofer is a pedophile,
a label widely recognized and associated with egregious criminal behavior.
The jury would also consider whether Meirhofer is still dangerous. They would
hear that he was convicted in 1988 and served a 9-year prison sentence, after which
he was confined at the Special Commitment Center on McNeil Island for 14 years.
12
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
They would be shown actuarial instruments6 that predict his likelihood of reoffending.
They would be told that the State's expert predicted a likelihood of reoffending
between 20 percent and 30 percent, down from 92 percent during his commitment
trial. Meirhofer's own expert would confirm this score. The jury would be told that the
State's psychologist, despite his actuarial assessment, believes that Meirhofer is still
dangerous because of his criminal actions nearly 27 years prior. They would be told
that his risk assessment will never drop to zero because of his previous criminal
behaviors.
Given all the evidence, the jury would weigh and consider if Meirhofer continues
to have a mental abnormality that renders him dangerous, beyond a reasonable
doubt. Beyond a reasonable doubt is the highest standard of proof, meaning that the
jury must decide that there is no doubt that Meirhofer continues to be mentally ill and
dangerous. A jury might find that the State has carried this heavy burden of proof, but
there is a reasonable possibility that the jury would hold to the contrary and that
Meirhofer would be released. Regardless, due process requires a hearing to
determine whether the significant change in Meirhofer's diagnoses means that he is
no longer an SVP.
6 An actuarial instrument is an empirical tool that estimates recidivism rates of sex offenders
by weighing a number of risk factors. The offender receives a score of one or zero based on
the presence or absence of the risk factor, the total is then added up, and the total score
represents the offender's risk of future offense. The weightiest risk factor is the number of
prior sex offenses. See generally DENNIS M. DOREN, USING RISK ASSESSMENT
INSTRUMENTATION, IN EVALUATING SEX OFFENDERS: A MANUAL FOR CIVIL COMMITMENTS AND
BEYOND 103 (2002); In re Oet. of Thorell, 149 Wash. 2d 724,753,72 P.3d 708 (2003).
13
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
Meirhofer's case might be unusual. Not all changes in diagnosis will require
relief under a personal restraint petition. For example, I agree with the majority that
the detainee in Klein would not be afforded a new proceeding under the test we
propose here. State v. Klein, 156 Wash. 2d 103, 124 P.3d 644 (2005). Klein, an insanity
acquittee, was originally diagnosed with psychoactive substance induced organic
mental disorder, a mental disorder induced by using one drug. Her diagnosis was later
changed to polysubstance dependence, a dependence on many drugs. /d. at 120.
The court concluded that Klein's diagnoses are based on "the very same
symptoms[ and] differ only in the name attached to it." Klein, 156 Wash. 2d at 120-21.
The change from dependence on one drug to many drugs does not give rise to a
reasonable possibility that a reasonable trier of fact would determine that Klein no
longer suffered from a mental illness that made her dangerous.
Unlike Klein's circumstances, Meirhofer's diagnostic change removed one of
his original diagnoses (not-A) and added a nebulous new diagnosis (D). In contrast,
Klein's diagnosis could be represented as a change in diagnosis from (A) to (A+).
Therefore, I would remand for an evidentiary hearing to determine if Meirhofer
continues to meet the criteria for confinement. We cannot live in the land of make-
believe, where fictitious roads for relief exist and we pretend that a change in diagnosis
makes no difference. The cornerstone of our system is due process-we must
continue to believe in the power of the jury to make a determination for the community.
A jury should determine if, beyond a reasonable doubt, Meirhofer continues to meet
the criteria for commitment.
14
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
Given the reasonable possibility that a trier of fact could determine Meirhofer's
restraint is unlawful, the evidentiary hearing should be granted. This test would not
empty the Special Commitment Center at McNeil Island of its detainees, but it would
provide an evidentiary trial for a subset of detainees whose situations fall outside of
the SVP statute.
CONCLUSION
Meirhofer's diagnoses have sufficiently changed in a manner other than what
is detailed in the SVP statute. A jury has not found that these conditions alone support
a finding that civil commitment is the least restrictive means to adequately protect the
community. Under the personal restraint petition analysis, I would hold that Meirhofer
is entitled to an evidentiary hearing to determine if the change in diagnoses justifies
Meirhofer's continued indefinite confinement under the statute.
15
In re Pers. Restraint of Meirhofer, No. 89251-2
(Wiggins, J., dissenting)
Therefore I dissent.
16