Opinion
Nos. 34145-0-II; 33596-4-II; 35221-4-II.
June 3, 2008.
Upon reconsideration of the decision reported at 138 Wn. App. 374 (2007) following the Supreme Court's grant of review and remand at 162 Wn.2d 1019 (2008), the court by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and armstrong, J., reaffirms its decision in the Jones case, reverses its decision in the Fox case, and remands the Fox case for further proceedings.
The Washington Supreme Court granted Petitions for Review filed bypersonal restraint petitioners Harry Fox and Robert Jones, ch. 71.09 RCW sexually violent predators (SVPs). The Court has remanded these consolidated cases for us to reconsider in light of In re Det. of Elmore, 162 Wn.2d 27, 168 P.3d 1285 (2007). Having reconsidered Fox and Jones' personal restraint petitions in light of Elmore, (1) we reverse our holding in In re Det. of Fox, 138 Wn. App. 374, 158 P.3d 69 (2007) ( Fox I), and remand for a full evidentiary hearing at which the State must establish, beyond a reasonable doubt, that Fox remains an SVP; and (2) we affirm our original opinion in In re Det. of Jones, 138 Wn. App. 374, 158 P.3d 69 (2007).
FACTS I. Fox
We draw the facts of Fox and Jones' hearings from Fox I.
In 2002, Fox stipulated to civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. In 2005, he requested a full evidentiary hearing to evaluate whether he still met the statutory criteria for continued SVP treatment.
An "SVP" is a person who "has been convicted of or charged with 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." Former RCW 71.09.020(16) (2003).
A. 2005 Evidentiary Hearing
In March 2005, the trial court granted Fox a full evidentiary hearing on his continued SVP commitment based on Dr. Richard Wollert's conclusion that, solely because Fox was then 61 Page 3 years old, he was unlikely to re-offend. Dr. Wollert based his conclusion on statistical data showing a general tendency for reduction in predatory offense as a pedophile ages. The trial court set the hearing for December 8.
B. Amendment of RCW 71.09.090
In May 2005, the legislature amended RCW 71.09.090 to allow a court to order or to hold an evidentiary hearing only when there is probable cause to believe that the SVP's condition has undergone a substantial change warranting reconsideration of his SVP commitment. The legislature clarified that a court cannot base a finding of such substantial change on a single demographic factor, such as "a change in the chronological age, marital status, or gender of the committed person." RCW 71.09.090(4)(c).
Nonetheless, the legislature clarified that an SVP may still challenge his commitment annually and may still secure a conditional release to a less secure environment or his outright release if he successfully progresses in his treatment. Laws of 2005 ch. 344 § 1.
C. Summary Judgment
In September 2005, the State moved for summary judgment based on this statutory amendment, RCW 71.09.090(4)(c). The State argued that the amendment did not authorize an evidentiary hearing for Fox because he had alleged a change in only his age. The trial court granted summary judgment to the State. Fox remained committed as an SVP.
D. Appeal
Fox appealed. He argued that (1) newly amended RCW 71.09.090 did not apply retroactively to him, and (2) therefore, the trial court should have granted him a full fact-finding Page 4 recommitment hearing under ch. 71.09 RCW to consider his present dangerousness and readiness for release. Fox I, 138 Wn. App. at 380. We disagreed.
The original appeal contained many other arguments as well, none of which are at issue here.
We held that the specific language of the RCW 71.09.090 amendment showed the legislature's intent for the new amendment to apply to probable cause (show cause) hearings as well as to full evidentiary hearings that trial courts had scheduled before the amendment, but not yet conducted. Fox I, 138 Wn. App. at 390. Because the trial court had already granted Fox a full evidentiary hearing based on his age alone, we held that the trial court did not err in granting the State's summary judgment motion to strike Fox's hearing because he did not meet the post-2005-amendment criteria for holding a new commitment proceeding. Fox I, 138 Wn. App. at 393.
II. Jones A. Evidentiary Hearing
At the age of 15, Robert Jones pleaded guilty to indecent liberties; at age 17, he pleaded guilty to second degree rape and rape of a child. On his release from prison in October 1995, Jones stipulated to civil commitment as an SVP. With the exception of an 18-month period, Jones participated in SVP treatment while committed.
At Jones' 2005 annual review, Dr. Wollert (1) challenged the State's doctor's use of the Static 99 Test (a common test for predicting recidivism risk); (2) observed that most common clinical tests do not accurately measure recidivism rates for juveniles; (3) put Jones' recidivism risk at no higher than ten percent; and (4) opined that Jones had never met the statutory requirements for an SVP. Dr. Wollert, however, did not address Jones' individual history, diagnoses, or change in condition brought about through his SVP treatment.
Based on Dr. Wollert's statements, Jones challenged the State's annual report, thus triggering a show cause hearing. Jones submitted Dr. Wollert's report to the trial court. On June 16, 2005, the trial court denied Jones' request for a new commitment hearing, finding that Dr. Wollert's declaration failed to make a prima facie showing of physiological changes in Jones or "a change in his mental condition brought about by treatment." Fox I, 138 Wn. App. at 384.
B. Appeal
Jones appealed. He argued that the trial court should have granted his request for a full evidentiary hearing under ch. 71.09 RCW to consider his present dangerousness and readiness for release because (1) his condition had changed since his SVP commitment; (2) his expert actuarial data demonstrated he had a lower recidivism risk; and (3) the legislative amendment to RCW 73.09.090 violated the separation of powers doctrine, his right to due process, and his right to equal protection of the law. Fox I, 138 Wn. App. at 380.
Rejecting his arguments, we held that "the SVP act amendments to RCW 71.09.090 are constitutional as enacted and as applied to [Jones]." We affirmed the trial court's denial of an evidentiary hearing for failure "to produce evidence of changes in [Jones'] condition warranting such hearing." Fox I, 138 Wn. App. at 381, 396.
III. In re Detention of Elmore; Remand
A short time later, the Washington Supreme Court decided Elmore: It ruled that, contrary to our holding in Fox I, the amendment to RCW 71.09.090 was not retroactive. Elmore, 162 Wn.2d at 36. Fox and Jones filed Petitions for Review in the Washington Supreme Court. The Court granted the petitions and remanded Fox and Jones' cases back to us for reconsideration in light of Elmore.
A trial court had granted SVP Elmore a full evidentiary hearing based on a doctor's findings that Elmore's condition had "so changed based on his increase in age alone." Elmore, 162 Wn.2d at 34 (internal quotation marks omitted). Both the State and Elmore appealed. But during the pendency of the appeal, the legislature amended RCW 71.09.090, eliminating age as a single, determinative factor for a change in SVP status. Applying the new statutory amendment retroactively to Elmore, we held that the trial court's granting an evidentiary hearing based on Elmore's age alone was in error. Elmore, 162 Wn.2d at 35.
The Washington Supreme Court reversed. It held that (1) based on the statutory language, the legislature did not intend the 2005 amendment to RCW 71.09.090 to apply retroactively; and (2) "the 2005 amendment is neither curative nor remedial because it changed the construction of the law as set forth in [case law] and contained an emergency clause." The court then refused to apply the amendment retroactively. Elmore, 162 Wn.2d at 36.
Having held that the amendment did not apply to Elmore, the Court went on to determine whether Elmore met the pre-2005 criteria for probable cause to proceed to a full evidentiary hearing. Elmore, 162 Wn.2d at 36-37.
Holding that the evidence presented at Elmore's show cause hearing "established probable cause to warrant a full hearing on Elmore's status as an SVP" under the pre-2005-amendment criteria, the Court remanded the case to the trial court for an evidentiary hearing. Elmore, 162 Wn.2d at 38.
ANALYSIS I. Fox's Petition for Review
In light of the Washington Supreme Court's decision in Elmore — that RCW 79.09.090 did not apply retroactively, we reverse our decision in Fox I and remand for a full evidentiary hearing on whether Fox remains an SVP.
A. Evidentiary Hearing
A committed person may petition for release to a less restrictive alternative or unconditional discharge. Former RCW 71.09.090, (2)(a) (2001). The trial court must then hold a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the committed person no longer meets the definition of a "sexually violent predator." Former RCW 71.09.090(2)(a)(i).
A committed SVP may establish probable cause warranting an evidentiary hearing either (1) by demonstrating a change in his mental abnormality or personality disorder, or (2) by showing that the he is no longer likely to engage in predatory acts of sexual violence. In re Det. of Petersen, 145 Wn.2d 789, 798-99, 42 P.3d 952 (2002). If the trial court determines that probable cause exists to show that the committed person no longer meets the "sexually violent predator" definition, the court must set an evidentiary hearing to consider the issue. Former RCW 71.09.090(2)(c)(ii)(A).
B. Standard of Review
We review de novo a trial court's conclusion about whether evidence meets the probable cause standard. Elmore, 162 Wn.2d at 37 (citing Petersen, 145 Wn.2d at 799). At a show cause hearing, a trial court may not weigh the committed person's evidence when determining whether probable cause exists to hold an evidentiary hearing; instead the trial court must decide whether the facts, if believed, establish that the person is no longer an SVP. Petersen, 145 Wn.2d at 798.
C. Sexually Violent Predator Evidentiary Hearing
The trial court originally granted Fox a full evidentiary hearing based on Dr. Wollert's report that Fox's change in age alone presented sufficient evidence that his condition may have "so changed that . . . [t]he person no longer meets the definition of a sexually violent predator" within the meaning of pre-2005-amendment RCW 79.09.090. Former RCW 71.09.090(2)(c)(ii)(A). At the show cause hearing, Fox presented expert witness Dr. Wollert to testify that Fox had a recidivism risk of 11 percent. Dr. Wollert concluded that, because of Fox's age, he was unlikely to re-offend based on statistics showing a reduction in predatory offenses as a pedophile ages. The trial court found that Dr. Wollert's opinion and statistics established probable cause to warrant a full evidentiary hearing.
But when the legislature amended RCW 79.09.090 to preclude conducting a full evidentiary hearing based on a single factor, such as age, the trial court understood the statute to prohibit such a hearing for Fox. Thus, the trial court granted the State's motion for summary judgment and to strike the evidentiary hearing to determine whether Fox's change in age rendered him less likely to reoffend and whether he should continue to be committed as an SVP.
On remand from the Supreme Court, we are compelled by its recent holding in Elmore to reverse the trial court's summary judgment for the State and to remand to the trial court to accord Fox an evidentiary hearing. According to the Supreme Court, under the pre-2005-statutory-amendment criteria, a committed person could demonstrate probable cause to hold a show cause hearing to determine whether the committed person no longer meets the definition of a "sexuallyviolent predator" based solely upon a change in age. Elmore, 162 Wn.2d at 38 (holding that evidence that increased age reduced an SVP's likelihood to reoffend supports a probable cause finding under the pre-2005 amendment). Dr. Wollert's testimony, if believed, would show that Fox's recidivism risk is only 11 percent because he has aged, making him less likely to engage in predatory acts of sexual violence. Under Elmore, Fox is thus entitled to a full evidentiary hearing.
II. Jones' Petition for Review
Because neither the trial court's decision nor our decision in Jones' original direct appeal rested on a retroactive application of RCW 71.09.090, the recent decision in Elmore does not change the result of our original decision. Fox I, 138 Wn. App. at 381, 384.
Accordingly, we re-affirm our previous holding in Jones, affirming the trial court's denial of an evidentiary hearing. And we remand Fox's case for a full evidentiary hearing to determine whether he remains an SVP.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., and HOUGHTON, C.J., concur.