DocketNumber： No. 70360-4
Citation Numbers： 145 Wash. 2d 789
Judges： Ireland, Sanders
Filed Date： 3/21/2002
Status： Precedential
Modified Date： 10/19/2024
(dissenting) — The majority wrongly uses a criminal standard for probable cause in spite of our clear holding that the sexually violent predator proceeding is civil. In re Pers. Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993). “In sum, we conclude that the sexually violent predator Statute is civil, not criminal, in nature. The language and history of the Statute so indicate, as do its purposes and effect.” Id. at 23. This court should affirm both trial courts’ denials of evidentiary hearings. Therefore, I dissent.
FACTS
In re Detention of Ronald L. Petersen
Ronald L. Petersen has been committed as a sexually violent predator since 1995. He began a long series of brutal sexual assaults, beginning at the age of eight. As a result of his history of multiple crimes, after his last release from prison, the State sought his commitment as a sexually violent predator pursuant to former chapter 71.09 RCW (1995). After a 1995 trial in which the State’s experts testified Petersen suffered from paraphilia, sexual sadism, and an antisocial personality disorder, a unanimous jury concluded Petersen was a sexually violent predator in need of total confinement. He has been at the Special Commitment Center (SCC) in the custody of the Department of Social and Health Services (DSHS) since 1995.
Petersen’s 1997 annual evaluation concluded, in a report by staff clinical psychologist Dr. Regina Harrington, that Petersen continued to suffer from his previous conditions. The report stated: “ ‘At this time, this man remains an untreated sex offender who is more likely than not to repeat violent and predatory sexual assaults if he were released to live freely in the community.’ ” Petersen, 138 Wn.2d at 76 (quoting Clerk’s Papers at 15-16). Petersen offered no evidence to contravene Dr. Harrington’s report. The trial court held a hearing and found, based on this report and the absence of refuting evidence, that there was no probable cause to believe Petersen’s condition had so changed that a full evidentiary hearing should be held.
At Petersen’s 1998 annual evaluation, licensed psychologist Dr. Stephen Wagner of the SCC recommended against release. Petersen presented no contrary declarations or any evidence suggesting a change in his condition. On June 23, 1998, the trial court found that Petersen continued to meet the definition of a sexually violent predator and that release to a less restrictive alternative was not appropriate. Based on the record, the court found no probable cause to support a full evidentiary hearing.
Petersen’s 1999 annual evaluation concluded, in a report by staff psychologist Dr. Vincent Gollogly of the SCC, that Petersen satisfied the definition of a sexually violent preda
In re Detention of Bernard Thorell
Bernard Thorell has been committed as a sexually violent predator since 1998. His history of committing acts of predatory sexual violence against children extends back to the age of 13. After the State’s experts testified Thorell suffered from paraphilia pedophilia, other paraphilias, exhibitionism, and several personality disorders, a unanimous jury at the 1998 commitment trial determined that Thorell was a sexual violent predator. Thorell has been placed by DSHS in the SCC since 1998. As the majority notes, beginning in January 1999, Thorell underwent serious surgeries with complications, resulting in a delay of the annual review process. Majority at 793.
The 1999 annual report by licensed psychologist Dr. Daniel Yanisch of the SCC gave his opinion that “Thorell suffers from a mental abnormality that renders him more likely than not to commit predatory sexual offenses if he were released to the community.” CP at 258. “It is also my opinion that he continues to require sex offender treatment in a secure placement such as that provided by the Special Commitment Center.” Id. “To my knowledge there are no other facilities that offer such treatment with adequate security to meet his needs and the needs of the community. I do not recommend that the Court consider a less restrictive placement at this time.” Id.
As detailed in the majority, Thorell’s primary witness was Dr. Thomas Gratzer, who recommended that a change of
On June 9, 1999, based on the evaluation and Thorell’s refuting evidence, the trial court held, at the probable cause hearing, that Thorell had not established “probable cause to believe that he is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative.” CP at 193. Thorell’s motion for a hearing on the issue of conditional release to an LRA was denied. The court agreed to reconsider the June 9, 1999 decision because Dr. Gratzer’s April 28, 1999 declaration on behalf of Thorell had been overlooked. On December 20, 1999, the court denied the petition for reconsideration as the State had “established the absence of probable cause to believe that Thorell is safe to be conditionally released.” CP at 357.
ANALYSIS
Standard of Review
Determination of the proper standard of review of sexually violent predator proceedings rests upon whether the question presented for review is one of fact, or a mixed question of law and fact. This Court reviews questions of law de novo. Monroe v. Soliz, 132 Wn.2d 414, 418, 939 P.2d 205 (1997). The interpretation of the sexually violent predator statute, former RCW 71.09.090(2) (Laws of 1995, ch. 216, § 9), is a question of law requiring de novo review.
The issues as framed by the majority are:
(1) Who bears the burden of proof at a show cause hearing pursuant to former RCW 71.09.090(2)?
(2) What is the proper standard of proof to be applied?
All of these issues are questions of law requiring a de novo review. The majority seems to agree. However, the majority confuses the standard of review for such issues of law with the standard of review when reviewing the trial court’s decision applying the law to the facts.
The majority acknowledges many cases which hold that such a determination is the deferential “abuse of discretion” standard, but insists that the standard of review in a probable cause hearing should be de novo. The majority claims the cases of our Supreme Court as opposed to the Court of Appeals favor de novo review. I disagree.
The majority’s reliance on State v. Perrone, 119 Wn.2d 538, 551, 834 P.2d 611 (1992) is inappropriate because, as is conceded, it concerns a determination of law (the particularity requirement) rather than a determination of probable cause. Perrone, 119 Wn.2d at 545. The only Supreme Court case cited by the majority, which is on point, applies an abuse of discretion standard to the probable cause determinations just as the Court of Appeals has. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). The proper standard of review for the trial court’s determination of probable cause is abuse of discretion. The majority creates a new standard and thereby overrules significant Supreme Court and Court of Appeals holdings to the contrary. The reliance on Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) is inappropriate in this case because the civil probable cause determination here is not of the same character as review of a criminal law determination of probable cause for a warrantless search.
The paramount issue in these appeals is to clarify the burden applicable at a former RCW 71.09.090(2) probable cause hearing. Former RCW 71.09.090(2) provides as follows:
(2) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional*809 release to a less restrictive alternative or unconditional discharge without the secretary’s approval. The secretary shall provide the committed person with an annual written notice of the person’s right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary’s objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the annual report. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person’s condition has so changed that he or she is safe to be conditionally released to a less restrictive alternative or unconditionally discharged. The committed person shall have a right to have an attorney represent him or her at the show cause hearing but the person is not entitled to be present at the show cause hearing. If the court at the show cause hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged, then the court shall set a hearing on the issue. At the hearing, the committed person shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting attorney or the attorney general if requested by the county shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The committed person shall also have the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged.
Former RCW 71.09.090(2).
Aprobable cause hearing is initiated by one of two means. Under subsection (1), the secretary of DSHS may determine
Under subsection (2), the committed person may petition the court for release without the secretary’s approval. Former RCW 71.09.090(2). The secretary shall provide the following: (1) an annual written notice of right to petition over the secretary’s objection; and (2) a waiver of rights. Id. The secretary forwards both the notice and waiver to the court with the annual report. Id. If the committed person signs the waiver of rights, this process ends. Id. However, if the rights are not waived, the court sets a probable cause hearing to determine if facts warrant a release hearing for unconditional discharge or a conditional release. Id.
In the probable cause hearing, the committed person has the right to be represented by an attorney. Id. However, the petitioner is not entitled to be present. Id. At the probable cause hearing, the standard is whether there is “probable cause” to believe that the committed person has so changed that the person is not likely to engage in sexually violent predatory criminal behavior upon his or her unconditional discharge or conditional release. Id. The probable cause hearing is an expression of the Legislature’s wish that judicial resources not be burdened annually with full evidentiary hearings for sexually violent predators absent at least some showing of probable cause to believe a further hearing is necessary. Petersen, 138 Wn.2d at 86.
If the court determines probable cause exists that the committed person’s condition has so changed that he or she is safe to be unconditionally discharged or conditionally
In the evidentiary release hearing, the committed person is entitled to be present and to the benefits of all constitutional protections afforded to the person at the initial commitment proceeding. Id. The State may be represented by the prosecuting attorney or the attorney general, and either party may demand a jury trial. Id. The State and the committed person have the right to evaluations of the committed person by experts. Id. If the committed person is indigent and requests an expert, the court shall appoint an expert. Id. The burden is on the State to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged. Id.
This Court has issued two decisions, Petersen, 138 Wn.2d 70 and In re Detention of Turay, 139 Wn.2d 379, 986 P.2d 790 (1999), directly addressing the applicable burden of proof at the probable cause hearings.
In Taray, this Court concluded that the State must bear the burden of proof in probable cause hearings based on the following analysis. The United States Supreme Court has unequivocally held that “in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence.” Foucha v. Louisiana, 504 U.S. 71, 86, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). This language indicates that due process requires the State to bear the burden of proof in all civil commitment proceedings. Turay, 139 Wn.2d at 424. Moreover, in Young, this Court held that “before a person can be civilly committed, the State must prove that the individual is mentally ill and dangerous.” Young, 122 Wn.2d at 37 (footnote omitted). Accordingly, both this Court and the United States Supreme Court agree that the State must bear the burden of proof in involuntary civil commitment hearings; therefore, due process requires
In Petersen, this Court concluded that the State bears the burden of proof in a probable cause hearing, following the United States Supreme Court precedent in Foucha. The petitioner, however, had the burden of showing facts exist to controvert the psychologist’s conclusion by DSHS annual review and to demonstrate probable cause for a further hearing. Petersen, 138 Wn.2d at 90. Petersen is harmonized with Turay by recognizing that the “burden of proof’ includes a “burden of production” and a “burden of persuasion.”
This Court has noted that the term “burden of proof’ includes the “burden of production” and the “burden of persuasion.” Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 433, 886 P.2d 172 (1994).
The State’s burden of production follows the statutory requirement that the secretary of DSHS annually evaluate the committed person and determine whether there has been a change or there is a continuing basis for commitment. Since the State has the burden of production each year, the concern addressed in Foucha is avoided—a committed person cannot continue to be held indefinitely without review. If the State fails annually to demonstrate a continuing basis for commitment, an evidentiary hearing must result. Former RCW 71.09.090.
If the State meets its initial burden, Petersen requires that the petitioner show facts, which controvert the State’s proof that the petitioner is obligated to produce evidence that “facts exist” that the committed person has so changed, to persuade the court to a contrary result. As noted in Federal Signal, “[i]t is axiomatic that each party must sustain a certain burden of production in any civil dispute.” 125 Wn.2d at 434. In the sexually violent predator probable cause hearing, the burden of production is initially upon the State. Turay, 139 Wn.2d at 424. In Petersen, the court articulates the petitioner’s burden of going forward with facts to contravene the State’s evidence. The State may
Standard of Proof
During the probable cause hearing, the court determines whether probable cause exists that the committed person’s condition has so changed that the person is not likely to engage in predatory acts of sexual violence if unconditionally discharged or conditionally released. Former RCW 71.09.090(2). “Probable cause” has been defined as:
Reasonable cause; having more evidence for than against. A reasonable ground for belief in certain alleged facts. A set of probabilities grounded in the factual and practical considerations which govern the decisions of reasonable and prudent persons and is more than mere suspicion but less than the quantum of evidence required for conviction. An apparent state of facts found to exist upon reasonable inquiry.. . , which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or, in a civil case, that a cause of action existed.
Black’s Law Dictionary 1201 (6th ed. 1990).
This Court has held that “the sexually violent predator Statute is civil, not criminal, in nature.” Young, 122 Wn.2d at 23. This was affirmed by the United States Supreme Court in Seling v. Young, 531 U.S. 250, 121 S. Ct. 727, 148 L. Ed. 2d 734 (2001) (citing Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997)).
In an involuntary commitment proceeding for treatment of mental disorders, “[t]he standard of proof at a 14-day probable cause hearing is ‘preponderance of the evidence.’ ” In re Det. of LaBelle, 107 Wn.2d 196, 214, 728 P.2d 138 (1986); RCW 71.05.240.
Because the Legislature chose the beyond a reasonable doubt standard in sexually violent predator commitment
During the probable cause hearing, the State has the burden of production to prove the absence of a change in the person’s mental abnormality or personality disorder such that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged. Former RCW 71.09.090(2). Once the State satisfies the burden of production by a preponderance of the evidence, the committed person may rebut the evidence by offering evidence that he or she has had a change which makes it not likely that the person will engage in predatory acts of sexual violence if unconditionally discharged or conditionally released.
In Petersen, after the State’s burden of production was met, Petersen attempted to establish probable cause by merely attacking the State’s evidence. The court held that the probable cause burden could not be satisfied in this manner:
Petersen presented no evidence whatsoever at the show cause hearing. All he did was move the trial court to invalidate the clinical psychologist’s report solely on the grounds the reporting clinical psychologist did not personally interview Trim. Even if we were to hold the psychologist’s report was invalid, we would still be compelled to uphold the trial court’s decision finding no probable cause, insofar as Petersen presented no affirmative evidence tending to show that “facts exist” to justify a full evidentiary hearing.
Petersen, 138 Wn.2d at 90.
Petersen and Thorell both argue that the trial court erred in finding no probable cause to proceed to a release hearing.
In re Petersen
In Petersen’s probable cause hearing at issue here, the trial court’s order could be construed to place the burden of production on the committed person. “Respondent has produced no evidence demonstrating that facts exist to support a determination of probable cause under former RCW 71.09.090(2).” Order Terminating 1999 Annual Review at 1. However, even though the court order fails to so acknowledge, our review of the record discloses that the State had met its burden of production. The DSHS annual report notes Petersen’s continuing refusal of treatment and states: “[u]nless he fully commits to the treatment program and completes all required courses .. . SCC [cannot] support his release to a less restrictive alternative.” 1999 Annual Review at 8. Petersen offered no evidence to contravene the State’s report. Accordingly, we are persuaded that the State carried both its burden of production and the ultimate burden of proof, by a preponderance of the evidence, that Petersen’s condition had not so changed as to warrant a release hearing.
In re Thorell
At the probable cause hearing in Thorell, the trial court order appeared to place the burden of production and proof on the committed person. Show Cause Order at 2. However, as acknowledged by the majority, this error was corrected in the December 20, 1999 order denying the petition for reconsideration. Majority at 794. The trial court placed the burden on the State and found “the State has established the absence of probable cause to believe that Mr. Thorell is safe to be conditionally released to a less restrictive alternative.” Order on Recons, at 2. Thorell offered Dr. Gratzer’s report and blood, polygraph, and plethysmograph tests to show that his testosterone levels, sexual arousal, and deviant fantasies and practices had been significantly re
All of the conditions of release to which Dr. Gratzer refers are in terms of “should be considered.” There must be facts with sufficient particularity to give the court a sense that safe release is a possibility. A litany of factors “to be considered” does not meet that standard. The court looks for the conditions that, in the opinion of the expert, would be sufficient to support a belief that Mr. Thorell would not engage in predatory sexual behavior if released.
Id. The motion for reconsideration was denied.
Great deference is given to the trial court’s determination on probable cause. State v. Cord, 103 Wn.2d 361, 366, 693 P.2d 81 (1985). The trial court’s determination of whether the burden of production and the burden of persuasion have been met should be done on a case-by-case basis. See generally State v. Hanna, 123 Wn.2d 704, 712, 871 P.2d 135 (1994). In Petersen, no evidence was offered by Petersen to contravene the evidence produced by the State. In Thorell, even though Thorell offered a report and test results, the court found it was not sufficient to support a belief that Thorell had so changed that he would not likely engage in predatory sexual behavior if released. Therefore, the trial courts in Petersen and Thorell did not abuse their discretion in denying a release hearing.
Less Restrictive Alternative (LRA)
In Thorell, the State argues the trial court erred in its order on reconsideration and in prior orders by not requiring that probable cause be present as to each of the elements of RCW 71.09.092, the LRA statute, before ordering a new trial under former RCW 71.09.090(2) to address LRAs.
In this case, this argument is premature, in that the probable cause hearing is to determine whether evidence exists by a preponderance that the person has changed and, therefore, is not likely to engage in predatory acts of sexual
“Change” Requirement
Petersen argues that the “change” requirement in former RCW 71.09.090(1) and (2) violates the equal protection and due process clauses of the state and federal constitutions. Petersen argues that regardless of who is assigned the burden of proof, the change requirement imposes a burden of production on the committed person. In addition, Petersen argues since personality disorders and paraphilias tend to be chronic and lifelong, he is virtually subject to a lifetime commitment because according to the statute, there has been “no change” in the committed person’s condition.
Petersen does not cite specific authority for this argument. The “so changed” probable cause requirement performs an important gatekeeping function.
In Young, this Court upheld the constitutionality of former chapter 71.09 RCW, determining that “there are no substantive constitutional impediments to the sexually violent predator scheme.” Young, 122 Wn.2d at 26. The Court also stated:
A person cannot be deprived of procedural protections afforded other individuals merely because the State makes the decision to seek commitment under one statute rather than another statute. Thus, in regard to the initial determination of whether there is probable cause for detention, an individual is entitled*818 to the same opportunity to appear before the court to contest detention in any civil commitment proceeding.
Young, 122 Wn.2d at 45-46 (citations omitted).
Following the analysis in Young, there is no violation of equal protection and due process as long as procedural safeguards are in place. Since annual review standards are in place and required by former RCW 71.09.090, there is no violation of equal protection or due process.
Discovery Ruling
In the Petersen case, the trial court granted the State’s motion for a protective order, quashing the notice of deposition served on the State’s expert witness, Dr. Vincent Gollogly, Ph.D. Dr. Gollogly had never personally interviewed or evaluated Petersen. Petersen argued that because he was prevented from deposing Dr. Gollogly, as to the factual basis for his opinion in his evaluation letter, he was unable to determine whether his opinion was based in fact or speciousness. Trial counsel argued that she was unable to effectively represent Petersen without being able to question the State’s sole witness for the annual review.
This deposition was sought in a preliminary proceeding. The petitioner argued that he wished to object to the admissibility of the expert’s evaluation under ER 703, and therefore required a deposition. The State is required to do the annual review and the committed person has the opportunity to go forward and rebut the State’s evidence. ER 703 simply discusses the permissible bases for an opinion. It does not establish entitlement to a disposition. The trial court did not err in denying the deposition. Furthermore, the issue is moot as to Petersen’s 1999 review hearing because he is entitled under the statute to a new annual review. However, in the interest of fairness, we should hold that in the future the committed person should be allowed to depose the State’s witness in the annual review when the person writing the review has never personally evaluated or interviewed the committed person.
The initial burden of proof at the annual probable cause hearing rests with the State. The standard applied to the burden of proof is properly a preponderance of the evidence. The committed person has the burden to produce evidence to controvert the State’s evidence. The State bears the ultimate burden of persuasion. Finding no abuse of discretion, the trial court in both Petersen and Thorell should be affirmed.
Bridge and Owens, JJ., concur with Ireland, J.
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