Opinion
No. 36492-1-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-2-00225-1, H. John Hall, J., entered May 18, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Jake Hawkins appeals a trial court order requiring him, as a potential sexually violent predator (SVP), to submit to a sexual history polygraph as part of a pretrial psychological evaluation. He argues that the trial court exceeded its authority in ordering the evaluation and that the Department of Social and Health Services (DSHS) exceeded its authority in promulgating WAC 388-880-034 . We affirm.
FACTS
On February 21, 2006, the State petitioned the superior court seeking to involuntarily commit Hawkins as a SVP under chapter 71.09 RCW. The petition, filed before his release, stated that he had been convicted in 1993 of second degree rape by forcible compulsion and that he is likely to reoffend as he suffers from voyeurism, paraphilia, alcoholism, dysthymic disorder, and personality disorder.
The State drew these conclusions from the report of Chris North, a psychologist, who wrote an evaluation of Hawkins while he was incarcerated. North testified at the hearing that although Hawkins successfully completed a 13-month sex offender treatment program, "his history of offending is so serious and sexual deviance is so deeply engrained . . . he is likely at some point in the future to commit a new sexually violent predatory offense." Report of Proceedings at 8-9.
The report does not appear to be a part of the record on appeal, although the State indicated that it was attached to its initial petition to the superior court. However, North's declaration, related to his report, is a part of the record.
After filing the petition, the State moved to compel Hawkins to submit to a polygraph examination as part of his psychological evaluation. He objected to the polygraph and presented his own expert testimony. After reviewing declarations, memoranda, and hearing argument from Hawkins and the State, the court ordered him to submit to a polygraph examination using the "control question technique" limited in scope to his sexual history. Clerk's Papers at 6. He appeals.
ANALYSIS
Hawkins first contends that the trial court erred in (1) issuing an order mandating the polygraph evaluation, (2) that it lacked statutory authority to issue such an order, (3) finding RCW 71.09.040(4) allows for polygraphy in evaluation of SVP, (4) finding the polygraphy should focus on sexual history, and (5) finding the "control question technique" should be the questioning method.
RCW 71.09.040(4) provides:
If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the department of social and health services. In adopting such rules, the department of social and health services shall consult with the department of health and the department of corrections. In no event shall the person be released from confinement prior to trial. A witness called by either party shall be permitted to testify by telephone.
Hawkins cites In re Detention of Martin, to correctly argue that chapter 71.09 RCW must be strictly construed because it has the potential to curtail civil rights. 163 Wn.2d 501, 508, 182 P.3d 951 (2008). But as the statute directs, "The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the department of social and health services." RCW 71.09.040(4).
The DSHS rules to which RCW 71.09.040(4) refers are contained in chapter 388-880 WAC, specifically-030,-033,-034,-035, and-036. WAC 388-880-030(1) restates the legislative mandate under RCW 71.09.040(4) that DSHS shall "provide an evaluation to the court" and make a recommendation regarding the commitment of the potential SVP. WAC 388-880-030(2) clarifies that this "evaluation must be conducted in accordance with the criteria" listed in WAC 388-880-033 ,-034,-036.
WAC 388-880-033 lists the qualifications of any potential evaluator. WAC 388-880-034 lists the evaluator's responsibilities and procedural methods. WAC 388-880-036 describes the form and content of the written evaluation presented to the court.
WAC 388-880-034 provides that the evaluation must be based on "(1) Examination of the resident, including a forensic interview and a medical examination, if necessary; (2) Review of the following records, tests or reports relating to the person:. . . . (e) Medical and Physiological testing, including plethysmography and polygraphy." Furthermore, as the State argues, SVP actions are civil in nature and thus CR 26(a) provides an additional basis for "physical and mental examinations" ordered by the trial court.
We review the trial court's order to compel discovery for abuse of discretion. Clarke v. Office of Attorney Gen., 133 Wn. App. 767, 777, 138 P.3d 144 (2006), review denied, 160 Wn.2d 1006 (2007). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. Clarke, 133 Wn. App. at 777. Here, the trial court directed Hawkins to submit to a polygraph examination after a qualified examiner recommended it. Chapter 71.09 RCW and chapter 388-880 WAC allow for polygraph examinations in the case of a potential SVP. RCW 71.09.040(4); WAC 388-880-030(1),-034. Therefore, the trial court did not abuse its discretion and Hawkins's argument fails.
Hawkins next contends that DSHS exceeded its authority in promulgating WAC 388-088-034 and-035. The State argues that he raises this error for the first time on appeal and, therefore, we should decline to review it. He counters that his assignment of error applies to the trial court's order for him to submit to a polygraph examination and, when an agency exceeds its statutory authority, separation of powers concerns lead to a manifest error affecting a constitutional right. Hawkins's argument lacks merit.
Chapter 71.09 RCW and chapter 388-880 WAC allow polygraph examinations in the case of a potential SVP. RCW 71.09.040(4); WAC 388-880-030(1),-034. It would be unreasonable to read WAC 388-880-034(2)(e) as allowing an evaluator to consider polygraph records but not allowing the trial court to order the examination. Thus, DSHS did not exceed its authority granted under RCW 71.09.040(4) by promulgating WAC 388-880-034(2)(e).
Affirmed.
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.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.