State v. T.J.S.-M.

This opinion was
filed for record
IN CLIMCN OrPICE at3175 Wash. 2d 901, 907, 287
P.3d 584(2012)(citing State v. Gentry, 125 Wash. 2d 570, 616, 888 P.2d 1105 (1995)). A
case is moot if we can no longer provide effective relief on appeal. Id. The expiration of
a sentencing term technically renders a case moot. Id. (citing In re Pers. Restraint of
Mattson, 166 Wash. 2d 730, 736, 214 P.3d 141 (2009)). Nevertheless, we may retain and
decide a case if it involves matters of continuing and substantial interest. Id. We consider
three factors when determining whether the issue presents a continuing and substantial
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No. 96434-3
public interest: "'[(1)] the public or private nature of the question presented,[(2)] the
desirability of an authoritative determination for the future guidance of public officers,
and [(3)] the likelihood of future recurrence of the question.'" Id. (alterations in original)
(internal quotation marks omitted)(quoting Mattson, 166 Wash. 2d at 736).
Here, the timing of appealing a suspended manifest injustice disposition is a matter
of public interest. It is not unique to T.J.S.-M., and whether a suspended disposition may
be challenged is irrefutably of substantial public interest. Next, the lower court relied on a
prior Court of Appeals case to dismiss T.J.S.-M.'s appeal on ripeness grounds. We have
not had the opportunity to decide this issue.^ Since we have not ruled on this issue, there
is a need for future guidance, meeting the second factor. Finally, this issue is likely to
recur because manifest injustice dispositions are prevalent in juvenile proceedings and
enhanced sentences are often challenged. Based on these eonsiderations, we proceed to
the merits of the case.
Reviewabilitv of Suspended Manifest Injustice Dispositions
The first issue is whether a suspended manifest injustice disposition is reviewable
prior to revocation of a SSODA. The Court of Appeals dismissed T.J.S.-M.'s appeal
based on RCW 13.40.162 and State v. J.B., 102 Wash. App. 583, 9 P.3d 890(2000). J.B.
involved a challenge to a suspended manifest injustice disposition. Relying on State v.
Langland, 42 Wash. App. 287, 711 P.2d 1039(1985)(suspended life sentence as cruel and
unusual punishment is not ripe for review until the sentence is actually imposed), the
'It appears that the parties in the case that the Court of Appeals relied on,State v. J.B., 102 Wn.
App. 583,9 P.3d 890(2000), did not seek review of that case in this court.
4
No. 96434-3
court in J.B. held that a suspended manifest injustice disposition is not ripe for review
because "the consequences of such rulings are merely potential, not actual." J.B., 102
Wash. App. at 585. The court stated that "the proper time to appeal a suspended manifest
injustice disposition is after that disposition is imposed following SSODA revocation."
Id. at 584.
Relying on J.B., the State contends that the appeal should have been brought after
T.J.S.-M.'s "SSODA was revoked and the [suspended] JRA [(Juvenile Rehabilitation
Administration) sentence] imposed." Suppl. Br. of Resp't at 7. The State urges that since
T.J.S.-M. failed to wait until his suspended sentence was imposed, his sentence is not ripe
for review.
Statutes Governing Manifest Injustice and SSODA Dispositions
We first note that a manifest injustice disposition and a SSODA disposition are
governed by different statutes. Imposition of a manifest injustice sentence is governed by
ROW 13.40.160(2). Under that section, the court must enter its reasons for imposing a
manifest injustice sentence as indicated in option D of ROW 13.40.0357, and the sentence
imposed under option D "shall be comprised of confinement or community supervision,
or a combination thereof." RCW 13.40.160(2). "Community supervision" is defined in
part as "an individualized program comprised of. . . [rjesidential treatment, where
substance abuse, mental health, and/or co-occurring disorders have been identified in an
assessment by a qualified mental health professional." RCW 13.40.020(5)(e). If the court
"imposes a sentence of confinement exceeding thirty days, the court shall sentence the
juvenile to a maximum term." RCW 13.40.160(2). A court may suspend the execution of
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No. 96434-3
the manifest injustice disposition if imposed in conjunction with a SSODA disposition.
RCW 13.40.160(10).
"A disposition outside the standard range is appealable under RCW 13.40.230 by
the state or the respondent." RCW 13.40.160(2). If appealed, a manifest injustice
disposition must be supported by the record, those reasons must clearly and convincingly
support a disposition outside the standard range, and the sentence imposed must not be
clearly too excessive or too lenient. RCW 13.40.230(2). RCW 13.40.230(1) provides
that appeal of a manifest injustice sentence "shall be heard solely upon the record that was
before the disposition court. No written briefs may be required, and the appeal shall be
heard within thirty days following the date of sentencing and a decision rendered within
fifteen days following the argument."
SSODA dispositions are governed by RCW 13.40.162(3). That statute provides
that when a juvenile offender is eligible for a SSODA,a court may order an examination
to determine eligibility for treatment. RCW 13.40.162(2). If the court determines
treatment is necessary after reviewing the examination report, it shall impose either a
standard range disposition or a manifest injustice disposition, if appropriate. RCW
13.40.162(3). The court may also "suspend the execution ofthe disposition and place the
offender on community supervision for at least two years." Id. SSODA dispositions are
not appealable under RCW 13.40.230. RCW 13.40.162(10).
The court in J.B. and the Court of Appeals here implicitly recognize that
T.J.S.-M.'s suspended manifest injustice disposition is appealable. The disagreement is
No. 96434-3
when a challenge to the manifest injustice disposition is ripe when it is imposed in
conjunction with a SSODA disposition. The statutes answer this question.
RCW 13.40.230 does not distinguish between the appeal of a manifest injustice
sentence that is suspended and one that is not. Instead, RCW 13.40.230 lays out an
accelerated appellate procedure that suggests thatjuvenile defendants should be able to
immediately challenge their manifest injustice dispositions due to the truncated timetable
juvenile sentences normally face. See RCW 13.40.230(1)("the appeal shall be heard
within thirty daysfollowing the date ofsentencing and a decision rendered within fifteen
days following the argument"(emphasis added)). RCW 13.40.160(2) describes a
manifest injustice sentence as "a disposition outside the standard range," and "[a]
disposition outside the standard range is appealable." Nothing in RCW 13.40.160
suggests a manifest injustice disposition may be appealed only when a suspension is
revoked. Indeed, a "disposition outside the standard range is appealable under RCW
13.40.230 by the state or the respondent." Id.(emphasis added). There is no limiting
language here.
Reading these statutes together, it is clear that a SSODA sentence is not appealable
under RCW 13.40.162(10). It is equally clear that a manifest injustice disposition is
appealable under RCW 13.40.230 regardless of whether the execution ofthe disposition is
suspended, RCW 13.40.160(10).
As mentioned, the Court of Appeals here relied on J.B., which cited RCW
13.40.162 as support for holding that appeal of a manifest injustice disposition was not
ripe until it is imposed. But, there is a difference between the imposition and the
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No. 96434-3
execution of a disposition. J.B. conflates these two distinct terms. A trial court''may
suspend the execution ofthe disposition'' when imposing a SSODA sentence. RCW
13.40.162(3)(emphasis added). However, the manifest injustiee disposition is actually
imposed at sentencing. Id. To the extent that J.B. suggests a manifest injustice
disposition may be appealed only after the revoeation of a SSODA, we disapprove it.
Standard ofProof in Juvenile Sentencing Hearings
When imposing T.J.S.-M.'s manifest injustice disposition, the trial court
determined the standard range was insufficient by clear and convineing evidenee. The
trial court noted that it believed the clear and convincing evidence standard to be "just
below beyond a reasonable doubt." 2 VRP at 353. T.J.S.-M. argues this was an improper
standard to apply.
T.J.S.-M. asserts that the clear and convincing standard is the eivil counterpart to
beyond a reasonable doubt in the juvenile eontext, relying on In re Levias, 83 Wash. 2d 253,
517 P.2d 588 (1973). Suppl. Br. of Appellant/Pet'r at 6. He argues that the eourt must
find beyond a reasonable doubt that he presents a clear danger to soeiety for a manifest
injustice disposition to be upheld. Id. (citing State v. Rhodes,92 Wash. 2d 755, 600 P.2d
1264 (1979)). He also cites to a long line of cases that also hold similar propositions.^
The State argues the line of cases that T.J.S-M. relies on are no longer sound
precedent. See Suppl. Br. of Resp't at 9-10. We agree.
^ See id. at 7-8.
No. 96434-3
The proposition that T.J.S.-M. argues for—^that the clear and convincing standard
is equivalent to beyond a reasonable doubt—^has its genesis in In re Winship, 397 U.S.
358,90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The issue in Winship was whether
juveniles are constitutionally entitled to proof beyond a reasonable doubt when they are
charged with criminal violations. Id. at 365. The defendant was sentenced in New York
Family Court to 18 months in training school, subject to annual extensions of commitment
until his 18th birthday. Id. at 360. The trial judge had relied on a state statute that
provided "'[a]ny determination at the conclusion of[an adjudieatory] hearing that a
[juvenile] did an act or acts must be based on a preponderance of the evidence.'" Id. The
Supreme Court held that the preponderance standard was insufficient to convict a juvenile
of a crime. It reasoned that '"[gjuilt in a criminal case must be proved beyond a
reasonable doubt'" as those rules were "'developed to safeguard men from dubious and
unjust convictions, with resulting forfeitures of life, liberty and property.'" Id. at 362
(alteration in original)(quoting Brinegar v. United States, 338 U.S. 160, 174, 69 S. Ct.
1302, 93 L. Ed. 1879 (1949)). Due process "protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged." Id. at 364. Even though juvenile proceedings generally
were civil in nature and part of the purpose ofthose proceedings were for rehabilitative
purposes,"civil labels and good intentions do not themselves obviate the need for
criminal due process safeguards in juvenile courts, for'[a] proceeding where the issue is
whether the child will be found to be delinquent and subjected to the loss of his liberty for
years is comparable in seriousness to a felony prosecution.'" Id. at 365-66 (internal
9
No. 96434-3
quotation marks omitted)(quoting/n re Gault, 387 U.S. 1, 36, 87 S. Ct. 1428, 18 L. Ed.
2d 527(1967)).
We followed the Winship Court's rationale in Levias in the context of indefinite
civil commitment proceedings. The issue there was whether the State needed to prove
dangerousness for indefinite civil commitment by a preponderance of the evidence or
beyond a reasonable doubt. Levias, 83 Wash. 2d at 254-55. The trial court had instructed
the jury that the standard was clear, cogent, and convincing evidence. Id. at 254.
Relying on Winship, we noted that "due process requires proof beyond a reasonable doubt
in juvenile proceedings, since the child may be 'subjected to the loss of his liberty for
years.'" Id. at 255 (quoting Winship, 397 U.S. at 366). We thus held that the clear,
cogent, and convincing evidence "constitutes the civil counterpart ofthe criminal
reasonable doubt standard." Id. at 256. As a result, that standard "exacts the duty that
every element essential to proving committable mental illness be demonstrated to a degree
essentially corresponding to that necessary for commitment in criminal proceedings." Id.
We reaffirmed the equivalency of the two standards in Rhodes. 92 Wash. 2d 755.
There, we reviewed whether the imposition of a manifest injustice disposition in a
juvenile sentence is supported by clear and convincing evidence in the trial court's
findings. To begin, we held that "[t]he promulgation of standard disposition ranges for
juvenile offenders creates a constitutionally protected . .. interest." Id. at 758. We then
reiterated that "[t]he 'clear and convincing' standard is the civil counterpart to 'beyond a
reasonable doubt'" and the "phrase 'manifest injustice' represents a demanding standard."
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No. 96434-3
Id. at 760. "[T]o stand on review, the standard range for this offense and this defendant
must present, beyond a reasonable doubt, a clear danger to society." Id.
That same year, the Supreme Court addressed the appropriate standard of proof in
civil commitment proceedings in Addington v. Texas, 441 U.S. 418,99 S. Ct. 1804,60 L.
Ed. 2d 323 (1979). Texas determined that preponderance of the evidence was the
appropriate standard for civil commitment proceedings. Id. at 422. The Court disagreed,
stating that "there is [a] possible risk that a factfmder might decide to commit an
individual based solely on a few isolated instances of unusual conduct." Id. at 427.
"[D]ue process requires the state to justify confinement by proof more substantial than a
mere preponderance of the evidence." Id. However, it also found the reasonable doubt
standard to be equally inappropriate because unlike criminal cases,"[t]he subtleties and
nuances of psychiatric diagnosis render certainties virtually beyond reach in most
situations." Id. at 430. Having such a high standard of proof would "undercut [the
state's] efforts to further the legitimate interests of both the state and the patient that are
served by civil commitments." Id. Thus, the court concluded the appropriate standard in
civil commitment proceedings is clear and convincing evidence.
After that decision, we revisited Tevmi'in Dimner v. McLaughlin, ICQ Wn.2d 832,
616 P.2d 444(1984). Relying on the Court's holding in Addington, we held that clear and
convincing evidence is the standard of proof in civil commitment proceedings. Id. at 843.
We noted that in Levias we may have felt bound by the holding in Winship to determine
that proof beyond a reasonable doubt was necessary in civil commitment proceedings. Id.
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No. 96434-3
at 842-43. We then overruled Levias, holding that clear, cogent, and convincing evidence
is the proper standard of proof, as a standard distinct from beyond a reasonable doubt.
Finally, in State v. Baldwin, 150 Wash. 2d 448, 78 P.3d 1005 (2003), we overruled
Rhodes's, holding that dispositional standards create a constitutionally protected liberty
interest because, in part, "[t]he guidelines are intended only to structure discretionary
decisions affecting sentences; they do not specify that a particular sentence must be
imposed. Since nothing in these guideline statutes requires a certain outcome, the statutes
create no constitutionally protectable liberty interest." Id. at 461. Since the rationale for
equating the clear and convincing standard with proof beyond a reasonable doubt was
based on the liberty interest at stake, we recognized that our holding in Rhodes could not
stand.
Because our case law holds that no constitutionally protectable liberty interest is
created by the juvenile dispositional guidelines, due process is not offended by applying
clear and convincing evidence in this context, which is not the equivalent to the beyond a
reasonable doubt standard.^
Manifest Injustice Disposition Was Supported bv Clear and Convincing Evidence
Finally, T.J.S.-M. contends the imposition of his manifest injustice disposition was
not supported by the evidence. He argues that the trial court's findings that his conduct
toward victims threatened serious bodily injury and that he was a high risk to reoffend
^ At oral argument, T.J.S.-M. raised issues regarding Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000). Because T.J.S.-M. did not present sufficient argument, we decline to
address whether these cases apply to juvenile sentencing.
12
No. 96434-3
were aggravating factors for purposes of his manifest injustice disposition do not meet the
requisite standard of proof.
We first note that T.J.S.-M.'s argument regarding the imposition of the manifest
injustice disposition is premised on his view that "clear and convincing" evidence equates
to "beyond a reasonable doubt." T.J.S.-M. does not argue how he prevails if we
determine that clear and convincing evidence is an intermediary standard below beyond a
reasonable doubt, and he appears to concede this point."*
CONCLUSION
Manifest injustice dispositions suspended by a SSODA are reviewable when
imposed—juveniles need not wait for the disposition to be executed before challenging it.
We reverse the Court of Appeals' ruling to the contrary. Further, we hold that the clear
and convincing standard as an intermediary standard is sufficient to support a manifest
injustice disposition and affirm the trial court's ruling.
"* During oral arguments, T.J.S.-M. was asked whether he would prevail under an intermediary
clear and convincing standard. While he did not expressly concede this point, he acknowledged,
"It's more difficult." Wash. Supreme Court oral argument. State v. T.J.S.-M., No. 96434-3
(Mar. 14, 2019), at 15 min., 36 sec. through 16 min., 10 sec., video recording by TVW,
Washington State's Public Affairs Network, https://www.tvw.org/watch/?eventID=2019031096.
13
No. 96434-3
WE CONCUR:
/d/i^
14
State V. T.J.S.-M.,^o. 96434-3
(Yu, J., concurring)
No. 96434-3
YU, J.(concurring) — I agree with the majority that we should address the
merits of this moot case, that a suspended manifest injustice disposition is ripe for
review at the time it is imposed, that the required evidentiary standard is clear and
convincing evidence, and that the evidence clearly and convincingly supported a
manifest injustice disposition in this case. However, I cannot agree with the
majority's broad and unnecessary assertion that a juvenile facing a manifest
injustice disposition has "no constitutionally protectable liberty interest" at stake.
Majority at 12. I therefore respectfully concur.
Determining the required evidentiary standard for imposing a manifest
injustice disposition should be a simple task. By statute, a "court's finding of
manifest injustice shall be supported by clear and convincing evidence." RCW
13.40.160(2). Likewise, appellate courts must determine on review whether a trial
court's "reasons clearly and convincingly support the conclusion that a disposition
within the [standard] range would constitute a manifest injustice." RCW
State V. No. 96434-3
(Yu, J., concurring)
13.40.230(2)(a). "Clear and convincing evidence" "is a quantum of proof that is
more than a preponderance of the evidence, but less than what is needed to
establish proof beyond a reasonable doubt." In re Estate ofBarnes, 185 Wash. 2d 1,
10 n.5, 367 P.3d 580(2016)(quoting v. Mentor, 63 Wash. 2d 150, 154, 385
P.2d 727(1963)). The statutory language thus could not be clearer: a manifest
injustice disposition must be supported by clear and convincing evidence, not by
proof beyond a reasonable doubt.
Nevertheless, State v. Rhodes held that "in order to stand on review, the
standard range for this offense and this defendant must present, beyond a
reasonable doubt, a clear danger to society." 92 Wash. 2d 755, 760, 600 P.2d 1264
(1979)(emphasis added). Rhodes took the view that in the juvenile context(based
on a questionable analogy to the civil commitment context),"clear and
convincing" and "beyond a reasonable doubt" actually mean the same thing. Id.
The "legal underpinnings" oiRhodes's view have "disappeared," and it should
now be disavowed.' W.G. Clark Constr. Co. v. Pac. Nw. Reg'I Council of
Carpenters, 180 Wash. 2d 54, 66, 322 P.3d 1207(2014).
'State V. Baldwin, 150 Wash. 2d 448,459, 78 P.3d 1005 (2003), overruled Rhodes only on
the specific issue of whether "juvenile dispositional standards were subject to due process
protections against arbitrary enforcement, such as vagueness challenges." Baldwin did not hold
that a juvenile facing a manifest injustice disposition has no constitutionally protected liberty
interest at stake. Contra majority at 12. To the contrary, in this case, T.J.S.-M.'s manifest
injustice disposition included a total deprivation of physical liberty in the form of a 36-week
State V. T.JS.-M., No. 96434-3
(Yu, J., concurring)
Rhodes equated "clear and convincing" with "beyond a reasonable doubt"
based on ha re Levias, 83 Wash. 2d 253, 517 P.2d 588 (1973), and State v. McCarter,
91 Wash. 2d 249, 588 P.2d 745 (1978). Those cases held that due process requires
proof beyond a reasonable doubt in civil commitment proceedings and therefore
assumed that when the legislature requires proof by clear, cogent, and convincing
evidence for civil commitment, it actually intends to require proof beyond a
reasonable doubt. McCarter, 91 Wash. 2d at 257; Levias, 83 Wash. 2d at 256 & n.2.
Again, the analogy between juvenile disposition proceedings and civil commitment
proceedings is questionable, but in any event, Levias and McCarter have been
definitively overruled. Dunner v. McLaughlin, 100 Wash. 2d 832, 843, 676 P.2d 444
(1984). Both the federal and state constitutions require only "proof by clear,
cogent and convincing evidence," not proof beyond a reasonable doubt. Ld. (citing
Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804,60 L. Ed. 2d 323 (1979)).
Rhodes thus based its holding on legal foundations that no longer exist. I
would disavow Rhodes and "assume that the legislature meant precisely what it
said and apply the statute as written." State v. Roggenkamp, 153 Wash. 2d 614, 625,
106 P.3d 196 (2005). The statutes as written require proof by clear and convincing
commitment to the Juvenile Rehabilitation Administration. Clerk's Papers at 83. Physical
liberty is a constitutionally protected interest pursuant to the due process clause itself. See In re
Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 18 L. Ed. 2d 527(1967). It does not need to be "created"
by statute. Majority at 12.
State V. 96434-3
(Yu, J., concurring)
evidence, which, as the trial court coiTcctly noted, is "just below beyond a
reasonable doubt."^ 2 Verbatim Report ofProceedings (Jan. 25, 2017) at 353.
I respectfully concur.
^ To the extent that T.J.S.-M. contends the statutory "clear and convincing" standard is
unconstitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), 1 agree that this issue was not sufficiently argued. Majority at 12 n.3.
State V. r.J.S'.-M, No. 96434-3
(Yu, J., concurring)
State V. T.J.S.-M.
No. 96434-3
Gonzalez, J.(dissenting)—T.J.S.-M. challenges his suspended manifest
injustice disposition. During the pendency of this appeal, T.J.S.-M. violated his
special sex offender disposition alternative(SSODA)conditions. Consequently,
his SSODA and suspended disposition were revoked, rendering this case moot.
Because the majority bypasses the issue of mootness and unnecessarily analyzes In
re Winship,^ I respectfully dissent.
"A case is moot if a court can no longer provide effective relief." Orwick v.
City ofSeattle, 103 Wash. 2d 249, 253, 692 P.2d 793 (1984)(citing State v. Turner,
98 Wash. 2d 731, 733, 658 P.2d 658 (1983)). "It is a general rule that, where only
moot questions or abstract propositions are involved,. . . the appeal . . . should be
dismissed." Sorenson v. City ofBellingham, 80 Wash. 2d 547, 558, 496 P.2d 512
(1972). A recognized exception to this general rule lies within the court's
discretion when "matters of continuing and substantial public interest are
397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
State V. r.J.S'.-M, No. 96434-3 (Gonzalez, J., dissenting)
involved." Id. {oiimg State ex rel. Yakima Amusement Co. v. Yakima County, 192
Wash. 179, 73 P.2d 759(1937), overruled on other grounds by Schneidmiller &
Faires v. Farr, 56 Wash. 2d 891, 355 P.2d 824 (I960)). Both parties concede this
case is moot because T.J.S.-M. served his sentence and we cannot provide relief
for him on appeal. At oral argument, T.J.S.-M.'s counsel stated that he does not
see any potential consequences because this case "was just an appeal of his
sentence, it wasn't an appeal of the sufficiency of evidence," and because
"[T.J.S.-M.] was subsequently revoked based on a subsequent. . . adult sex
offense." Wash. Supreme Court oral argument. State v. T.J.S.-M., No. 96434-3
(Mar. 14, 2019), at 1 min., 15 sec. through 2 min., 17 sec., video recording
by TVW, Washington State's Public Affairs Network,
http://www.tvw.org/watch/?eventID=2019031096.
A manifest injustice sentence is analogous to an exceptional sentence and
thus involves many of the same constitutional concerns as Apprendi and Blakely.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Both of these United States Supreme Court cases held that other than the fact of a
prior conviction, any fact that increases penalty for crime beyond the prescribed
statutory maximum must be submitted to jury and proved beyond reasonable
doubt. Apprendi, 530 U.S. at 477; see also Blakely, 542 U.S. at 301. The majority
State V. T.J.S.-M.,^o. 96434-3 (Gonzalez, J., dissenting)
appropriately declines to address whether Apprendi and Blakely apply in the
juvenile sentencing context because TJ.S.-M. did not present sufficient argument
on the issue. Majority at 12 n.3. Had T.J.S.-M. properly presented the argument, it
may well be that we would conclude Apprendi and Blakely require proof beyond a
reasonable doubt in the juvenile sentencing context. But without that discussion,
this case does not concern a matter of continuing and substantial public interest.
Thus, we should decline to consider whether due process was offended when the
trial court applied the clear and convincing standard.
The majority analyzes the clear and convincing standard in terms ofIn re
Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In Winship,
the United States Supreme Court held the preponderance of the evidence standard
was insufficient to convict a juvenile of a crime, reasoning that '"[gjuilt in a
criminal case must be proved beyond a reasonable doubt'" as those rules were
'"developed to safeguard men from dubious and unjust convictions, with resulting
forfeitures of life, liberty and property.'" 397 U.S. at 362 (alteration in original)
{quoting Brinegar V. United States, 338 U.S. 160, 174, 69 S. Ct. 1302, 93 L. Ed.
1879 (1949)); see also State v. Watkins, 191 Wash. 2d 530, 537, 423 P.3d 830(2018)
("Juveniles charged with crimes have a right to procedural due process." (citing In
re Gault, 387 U.S. 1, 30-31, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967))). The
majority's only purpose is to arrive at the same standard of proof currently in
State V. T.JS.-M., No. 96434-3 (Gonzalez, J., dissenting)
place, clear and convincing evidence. While I recognize the majority does not
unsettle the standard of proof applied in this context, I fear its analysis will cause
confusion because it considers some, but not all, subsequent applications of
Winship. See, e.g., majority at 10-11 (discussing Winship's application in the civil
commitment context (citing In re Levias, 83 Wash. 2d 253, 254-255, 517 P.2d 588
(1973), overruled by Dunner v. McLaughlin, 100 Wash. 2d 832, 676 P.2d 444
(1984))).
This is particularly true because Apprendi stems from Winship. 530 U.S. at
484("As we made clear in Winship, the 'reasonable doubt' requirement 'has [a]
vital role in our criminal procedure for cogent reasons.'" (alteration in original)
(quoting Winship, 397 U.S. at 363)). While in a future case we should address the
appropriate standard of proof in the juvenile context, a discussion of Winship in
this case will be misleading and not useful for future cases.
1 respectfully dissent.
State V. T.J.S.-M., No. 96434-3 (Gonzalez, J., dissenting)