Opinion
No. 57240-7-I.
November 19, 2007.
The unpublished opinion in this cause was withdrawn by order of the Court of Appeals dated March 3, 2008. Substitute opinion filed. See 143 Wn. App. 1022.
The setting of a trial date does not create a vested right to that trial. Thus, striking a trial date that was premised upon conditions that the legislature subsequently found inadequate does not constitute retroactive application of legislation in violation of the separation of powers doctrine. Statutory amendments clarifying that a change in a single demographic factor alone does not warrant a new civil commitment trial and does not violate due process. We affirm.
FACTS
Charles Johnson is confined as a sexually violent predator (SVP) under chapter 71.09 RCW, Washington's SVP statute. That statute requires annual review of SVP status. Johnson has repeatedly, since the time of his commitment, been found to meet the criteria of a SVP as he continues to exhibit symptoms of pedophilia, anti-social personality disorder, and refuses to participate in treatment.
See RCW 71.09.090.
In 2002, Johnson retained Dr. Brian W. Judd to assess his current condition. Dr. Judd's 2004 report concluded that Johnson no longer met the criteria of a SVP because of his age. Dr. Judd's conclusion was primarily based on studies and actuarial charts demonstrating that sexually violent recidivism rates decline with advancing age. When deposed, Dr. Judd confirmed that Johnson's age was the main factor leading to his conclusion that he no longer met the criteria of a SVP, as Johnson continued to exhibit symptoms (though less severe than in the past) of pedophilia, anti-social personality disorder, and had not demonstrated progress though treatment in developing the cognitive skills and tools to control his thoughts and/or behavior if placed in a less restrictive environment.
The impact of age on recidivism rates for sexually violent offenders is subject to much dispute among the scientific community, as Johnson's expert, Dr. Judd concedes. See CP 24-55.
In early 2005, Johnson sought an unconditional release trial pursuant to RCW 71.09.090(2)(c)(ii)(A) in Snohomish County Superior Court. The trial court, citing this court's decision in In re Detention of Young, granted Johnson a new trial. The Young court found an SVP had presented sufficient evidence to warrant a full evidentiary hearing, or a new trial, on the basis of expert opinion that his increased age rendered him unlikely to reoffend and commit acts of sexual violence.
120 Wn. App. 753, 86 P.3d 810 (2004).
Young, 120 Wn. App. 753.
A trial date was set for September 12, 2005. However, before the date of trial, the legislature amended the statute governing SVP annual order to show cause hearings to preclude granting a new trial solely on the basis of a change of a single demographic factor, including age. Based on this amendment, the trial court granted the State's motion to strike the trial date.
Johnson appeals and alleges that striking his trial date constitutes retroactive application of new legislation in violation of the separation of powers doctrine. Furthermore, Johnson alleges his due process rights were violated and the 2005 amendments are unconstitutional. Since his appeal, this court in In re Detention of Smith and in In re Detention of Fox has directly addressed the issues raised by Johnson and found them to be without merit.
137 Wn. App. 319, 153 P.3d 226 (2007).
138 Wn. App. 374, 158 P.3d 69 (2007).
ANALYSIS
A sexually violent predator is defined as "any 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." In turn, the standard for "[l]ikely" is "more probably than not."
Because indefinite civil commitment gives rise to serious constitutional concerns, the SVP statute includes certain procedural safeguards, including mandating annual order to show cause hearings (though an SVP may waive the hearing) under RCW 71.09.090. At an order to show cause hearing, the State must make out a prima facie case that the committee still meets the criteria of an SVP. The SVP also has the opportunity to present evidence that they have "so changed" since the time of their commitment to warrant a new full evidentiary hearing, or, a new commitment trial. Prior to 2005, the nature of evidence that an SVP may rely on to establish probable cause that he or she has "so changed" was not defined.
See Former RCW 71.09.090(2) (amended by Laws of 2005, ch. 344, § 1); see also In re Detention of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002).
In 2004, this court decided Young in which a psychologist offered an opinion at an order to show cause hearing that a SVP's advanced age meant he was no longer likely to commit acts of predatory sexual violence. The expert opinion was based on actuarial risk assessment. The Young court held the opinion sufficient to show probable cause warranting a new commitment trial. And in early 2005, this court held in In re Detention of Ward that expert opinion based on new diagnostic practices was similarly sufficient.
Young, 120 Wn. App. 753.
125 Wn. App. 381, 104 P.3d 747 (2005).
The legislature's 2005 amendments sought to clarify the probable cause standard of "so changed" warranting a new full evidentiary hearing and referred to the Young and Ward decisions as the "unintended consequence" of the language of the statute. Amended RCW 71.09.090(4) provides that an SVP may present evidence from a licensed professional that their condition has so changed either through a permanent physiological change, such as stroke or dementia, or that their mental condition has changed as a result of treatment. Requiring an SVP, who has been civilly committed indefinitely, to demonstrate, whether physically or mentally, that they have "so changed" prevents collateral attack on the results of the initial SVP determination proceeding at which the State must prove a SVP's status beyond a reasonable doubt. Amended RCW 71.09.090(4)(c) specifies:
Laws of 2005, ch. 344, § 1.
Amended RCW 71.09.090(4) states:
(a) Probable cause exists to believe that a person's condition has "so changed," under subsection (2) of this section, only when evidence exists, since the person's last commitment trial proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community.
(b) A new trial proceeding under subsection (3) of this section may be ordered, or held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding:
(i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
(ii) 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 to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding. . . . [A] single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
An SVP, by definition, is a danger to society in part because they suffer from a mental abnormality or personality disorder making them unable or unwilling to control their behavior. In its findings accompanying the 2005 amendments, the legislature stressed that an SVP's condition is long term and their mental abnormality or personality disorder is highly unlikely to change solely because one has gotten older or changed their gender.
See Laws of 2005, ch. 344, § 1.
The material facts of Smith are indistinguishable from the case at bar. Kim Smith had been granted a new trial prior to the 2005 amendment to RCW 71.09.090 after presenting expert opinion that he no longer met the criteria of a SVP due to his advanced age. This court upheld the striking of Smith's trial date because Smith did not have a vested right to a new trial. Retrospective application of legislation affecting a vested right would violate the separation of powers doctrine. The Smith court reasoned that a "vested right, entitled to protection from legislation, must be something more than a mere expectation based upon an anticipated continuance of the existing law." An expectation that there would be no change in the SVP criteria under RCW 71.09.090 did not vest existing SVPs with a right to have recommitment hearing requests evaluated according to the pre-2005 criteria. We see no reason to disclaim our reasoning in Smith, and find the amended RCW 71.09.090 applied to Johnson prospectively, not retrospectively as a trial had not yet been held.
Smith, 137 Wn. App. 319.
Smith, 137 Wn. App. at 330 (citing In re Estate of Burns, 131 Wn.2d 104, 116, 928 P.2d 1094 (1997)) (alteration in original and internal quotation marks omitted).
Fox, 138 Wn. App. at 391-92 (summarizing the separation of powers argument in Smith, 137 Wn. App. 319).
In re Detention of Elmore, No. 79208-9 (Wash. Oct. 18, 2007), the Supreme Court held that the 2005 amendments to the SVP statute do not apply retroactively and remanded for a full evidentiary hearing after finding the trial court had improperly weighed the evidence at the show cause hearing. Here, the amendments were applied to Johnson prospectively, not retroactively. Moreover, the trial court did not improperly weigh competing evidence at Johnson's show cause hearing.
Nor did application of the 2005 amendments to RCW 71.09.090 violate Johnson's due process rights. As the majority reasoned in Fox, an SVP retains adequate procedural protections to safeguard against commitment if and when they no longer meet the criteria of an SVP.
SVPs retain their right to an annual review, where they may present evidence, have an attorney represent them, and challenge the State's evidence. They may present both clinical and actuarial data so long as the SVP's case is not based solely on his having grown older, getting married, or undergoing a gender change.
Fox, 138 Wn. App. at 400 (alteration in original).
Johnson has failed to demonstrate probable cause that his condition has so changed as to warrant a full evidentiary hearing based on any evidence other than that of his increased age.
Johnson also argues that the 2005 amendments to RCW 71.09.090 are unconstitutional. In Fox, the majority decision of this court rejected the view that the amendments unconstitutionally limited the type of evidence and the weight of evidence that trial courts are permitted to analyze in SVP probable cause hearings in violation of the separation of powers doctrine. The Fox majority reasoned:
While the separation of powers doctrine precludes the legislature from making legal conclusions, the legislature may pass laws that directly impact pending cases in Washington courts. Here, it is the legislature's prerogative to clarify the definition of when a committed SVP's mental or physical condition has substantially changed such he is no longer a danger to the community and may be released. By specifying what evidence does or does not demonstrate a changed condition, the legislature gave Washington courts a facially neutral law to apply to pending litigation. In so doing, it did not violate the separation of powers doctrine.
. . . .
[N]othing in amended RCW 71.09.090 limits the court's ability to weigh and to analyze actuarial risk assessments during probable cause hearings. Rather, the amended statute simply states that in order to present expert testimony on this subject, the SVP must demonstrate that his condition has changed beyond more than a single demographic factor.
Fox, 138 Wn. App. at 393-97 (citations and footnotes omitted).
We decline Johnson's invitation to follow the dissent in Fox and find the 2005 amendments to RCW 71.09.090 constitutional both on their face and as applied to Johnson.
For the above reasons, we affirm.