IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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In the Matter of the Detention of ) co
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) No. 75138-7-1
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ZACHARY SHANE NELSON, )
) DIVISION ONE
Petitioner. ) 73.
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In the Matter of the Detention of ) No. 75364-9-1 co (f)
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LOUIS BROCK, ) PUBLISHED OPINION
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Petitioner. ) FILED: February 26, 2018
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BECKER, J. — These linked appeals are before us on discretionary review
to address a recurring issue in the procedure for determining whether a person
committed as a sexually violent predator may have a trial for release. We hold
that at a show cause hearing under RCW 71.09.090(2)(b), the prosecuting
agency is free to rely on experts of its choosing rather than relying exclusively on
annual evaluations prepared under RCW 71.09.070.
The issue involves two distinct sections of chapter 71.09 RCW. The first
is the requirement for an annual evaluation. Each person committed as a
sexually violent predator "shall have a current examination of his or her mental
condition made by the department at least once every year." RCW 71.09.070(1).
Nos. 75138-7-1 & 75364-9-1
The second is the procedure for a show cause hearing, which is set forth in
RCW 71.09.090(2).
A committed person may petition the court once a year for conditional
release to a less restrictive alternative or unconditional release. The court then
sets a show cause hearing to determine whether probable cause exists for a trial
on release. RCW 71.09.090(2)(a). The court performs "a critical gate-keeping
function" at the show cause hearing; the court "must assume the truth of the
evidence presented" but at the same time "must determine whether the asserted
evidence, if believed, is sufficient to establish the proposition its proponent
intends to prove." State v. McCuistion, 174 Wn.2d 369, 382, 275 P.3d 1092
(2012), cert. denied, 568 U.S. 1196 (2013).
At a show cause hearing, the prosecuting agency for the state "shall
present prima facie evidence establishing that the committed person continues to
meet the definition of a sexually violent predator and that a less restrictive
alternative is not in the best interest of the person and conditions cannot be
imposed that adequately protect the community." RCW 71.09.090(2)(b). If the
state does not make this initial showing, the court "shall" set a release trial.
RCW 71.09.090(2)(c).
If the state does make this initial showing, the committed person will still
be allowed to have a release trial if probable cause exists to believe that the
person's condition has "so changed" that
(A)the person no longer meets the definition of a sexually violent
predator; or(B) release to a proposed less restrictive alternative
would be in the best interest of the person and conditions can be
imposed that would adequately protect the community.
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Nos. 75138-7-1 & 75364-9-1
RCW 71.09.090(2)(c)(ii); see In re Det. of Petersen, 145 Wn.2d 789, 798, 42
P.3d 952(2002)(two statutory ways for a court to determine there is probable
cause to proceed to an evidentiary hearing: "(1) by deficiency in the proof
submitted by the State, or (2) by sufficiency of proof by the prisoner.") Proof that
the prisoner has "so changed" must be shown by current evidence from a
licensed professional of a physiological change or a treatment-induced change to
the person's mental condition. RCW 71.09.090(4); McCuistion, 174 Wn.2d at
382.
Petitioners contend that the prosecuting agency's prima facie evidence
required by RCW 71.09.090(2)(b) is limited to the annual evaluation. The
objective of petitioners is to proceed to a trial. If the state fails to make its prima
facie showing at the show cause hearing, the committed person will be granted a
full trial even if there is no evidence that the person has "so changed."
McCuistion, 174 Wn.2d at 380("The court must order an evidentiary hearing if the
State fails to meet its burden"); In re Det. of Marcum, 189 Wn.2d 1, 8,403 P.3d 16
(2017). Thus, if the prosecuting agency's evidence at the show cause hearing
were limited to an annual evaluation, and that evaluation did not meet the State's
burden stated in RCW 71.09.090(2)(b), the matter would proceed to trial.
Nelson
Petitioner Zachary Nelson was committed as a sexually violent predator in
2011. Nelson's commitment was based on acts he committed as an adolescent.
Nelson's annual evaluation in 2015 was performed by Dr. Robert Saari, a
psychologist employed as a forensic evaluator by the Department of Social and
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Nos. 75138-7-1 & 75364-9-1
Health Services. An annual evaluation must include "consideration of whether...
the committed person currently meets the definition of a sexually violent predator."
RCW 71.09.070(2)(a). According to Dr. Saari's report, he does not think Nelson
currently meets the definition. He said that his opinion was based not on any
clear change in Nelson's mental condition but on a fundamental disagreement
with his initial commitment.
Dr. Saari's evaluation was sent to the King County Superior Court and the
King County Prosecuting Attorney's Office as required by RCW 71.09.070(1).
Citing Dr. Saari's acknowledged lack of expertise with adolescent sex offenders,
the prosecutor's office contacted the department and requested a second
evaluation. The department retained Dr. Christopher North to complete a second
evaluation of Nelson. Dr. North has experience with juvenile sex offenders and
had previously evaluated Nelson. According to Dr. North's evaluation, Nelson
currently meets the definition of a sexually violent predator.
The court scheduled a show cause hearing to determine whether Nelson
was entitled to an unconditional release trial. Nelson moved to strike Dr. North's
evaluation, arguing the state was required to rely exclusively on the annual
evaluation performed by Dr. Saari. The trial court denied the motion to strike. If
the only professional evaluation before the court had been Dr. Saari's report
stating that Nelson does not meet the definition of a sexually violent predator, the
state would not have carried its initial burden of producing prima facie evidence.
The court concluded that the state met its prima facie burden through Dr. North's
evaluation.
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Nos. 75138-7-1 & 75364-9-1
Dr. Saari's report did not evaluate Nelson's condition as having changed
since his commitment trial. The trial court determined that his report was "not
sufficient" to allow Nelson to proceed to a trial and entered an order terminating
Nelson's annual review.
Nelson's appeal does not challenge the court's ruling that Dr. Saari's
report was insufficient to permit him to proceed to a trial. The sole issue he
presents is whether the trial court properly allowed the state to rely on Dr. North's
report as prima facie evidence of his unfitness for release instead of limiting the
State to Dr. Saari's evaluation.
Brock
Petitioner Louis Brock has been committed as a sexually violent predator
since 1991. While committed, Brock has largely refused treatment. Dr. Kristen
Carlson, a psychologist employed as a forensic evaluator by the department,
performed an annual evaluation of Brock. Her report was filed in February 2016.
She stated that although Brock was not participating in treatment, she could not
"say with any degree of psychological certainty that Mr. Brock is considered likely
(more probably than not) to commit a sexually violent offense." Brock requested
a show cause hearing to determine whether there were grounds for his
unconditional release in light of Dr. Carlson's report. The show cause hearing
was held in May 2016.
To meet its initial burden of producing prima facie evidence under
RCW 71.09.090(2)(b), the prosecuting agency—in Brock's case, the Attorney
General's Office—submitted an evaluation produced in November 2015 by
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Nos. 75138-7-1 & 75364-9-1
Dr. Henry Richards. Dr. Richards opined that Brock continues to meet the
definition of a sexually violent predator and is not safe to be released to a less
restrictive alternative. This report was not an annual evaluation produced by the
department. Dr. Richards prepared it in anticipation of serving as an expert
witness for the state at a trial in July 2016 on whether a less restrictive alternative
was appropriate for Brock.
Brock objected to the introduction of Dr. Richards' evaluation. He made
the same argument as Nelson—that the statute required the state to rely
exclusively on the annual evaluation performed by Dr. Carlson.
The court ruled the state was unrestricted in the type of evidence it could
present to make the prima facie showing required by RCW 71.09.090(2)(b). The
court admitted Dr. Richards' report and held that it was prima facie evidence that
Brock continued to meet the definition of a sexually violent predator.
The court then found that Brock did not meet his burden of establishing
probable cause that his condition had "so changed" under RCW 71.09.090(2)(c)(ii).
The court considered Carlson's evaluation but noted that Brock had not been
participating in treatment. The court declined to grant Brock's request for a new
trial. See RCW 71.09.090(4)(b).
Like Nelson, Brock does not challenge the trial court's ruling that Dr.
Carlson's report was insufficient to establish probable cause. The sole issue is
whether the trial court properly allowed the state to rely on the report by Dr.
Richards to make its prima facie showing. Petitioners contend that only the
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Nos. 75138-7-1 & 75364-9-1
annual evaluation is admissible at the show cause hearing to determine whether
the state has met its prima facie burden.
Since the grant of discretionary review, both Nelson and Brock have been
granted jury trials regarding their request for unconditional release. Because
they have already obtained the relief they are seeking, their appeals are
technically moot. This court may review a moot case "if it presents issues of
continuing and substantial public interest." In re Marriage of Homer, 151 Wn.2d
884, 891, 93 P.3d 124(2004). We elect to do so in this case due to the recurring
nature of the issue presented.
The issue presented is a matter of statutory construction. Statutory
interpretation is reviewed de novo. In re Det. of Strand, 167 Wn.2d 180, 186,
217 P.3d 1159 (2009). "In interpreting a statute, this court looks first to the plain
language." State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
Under RCW 71.09.070, the department must produce an annual report of
the detainee's mental condition. Petitioners claim the statute envisions the
annual report as the only evaluation the prosecuting agency may rely on to meet
the state's burden at the show cause hearing. Their proposed limitation finds no
support in the statutory language. The annual review and the show cause
hearing are separate and distinct procedures. RCW 71.09.070 makes the
production of the annual report an obligation of the department. It does not
preclude the prosecuting agency from hiring another expert to contradict the
annual report at the show cause hearing. It does not even mention the
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Nos. 75138-7-1 & 75364-9-1
prosecuting agency. The obligations of the prosecuting agency are discussed in
RCW 71.09.090(2)(b) in connection with the show cause hearing.
The show cause hearing is a judicial proceeding. Its purpose is to
determine whether the detainee is entitled to an evidentiary hearing. Marcum,
189 Wn.2d at 11. The initial burden of proof is placed on the prosecuting agency
to demonstrate that continued commitment is appropriate. To make its prima
facie showing at the show cause hearing, "the state may rely exclusively upon
the annual report prepared pursuant to RCW 71.09.070." RCW 71.09.090(2)(b).
Brock and Nelson argue that "may" in this context means "shall." Their
interpretation runs contrary to the statute's plain language. The word "may" is
ordinarily regarded as permissive, and it is presumed to do so when used in the
same statutory provision as the word "shall." Scannell v. City of Seattle, 97
Wn.2d 701, 704,648 P.2d 435, 656 P.2d 1083(1982). Here, the word "may" is
presumptively permissive. It occurs in a statutory provision that also uses the
word "shall":
The committed person shall have a right to have an attorney
represent him or her at the show cause hearing, which may be
conducted solely on the basis of affidavits or declarations, but the
person is not entitled to be present at the show cause hearing. At
the show cause hearing, the prosecuting agency shall present
prima facie evidence establishing that the committed person
continues to meet the definition of a sexually violent predator and
that a less restrictive alternative is not in the best interest of the
person and conditions cannot be imposed that adequately protect
the community. In making this showing, the state may rely
exclusively upon the annual report prepared pursuant to RCW
71.09.070. The committed person may present responsive
affidavits or declarations to which the state may reply.
RCW 71.09.090(2)(b)(emphasis added).
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Nos. 75138-7-1 & 75364-9-1
Courts do not engage in statutory interpretation of a statute that is not
ambiguous. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030(2001), cert.
denied, 534 U.S. 1130(2002). "If a statute is plain and unambiguous, its
meaning must be derived from the wording of the statute itself." Keller, 143
Wn.2d at 276. The statute quoted above unambiguously provides that the state
is permitted to rely on an annual report to make its prima facie case at the show
cause hearing but is not required to do so.
In an attempt to overcome the statute's plain language, Nelson and Brock
call on the doctrine of constitutional avoidance. Statutes are construed to avoid
constitutional problems if possible. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d
1374(1997). The annual review scheme is "critical" to the constitutionality of
chapter 71.09 RCW because it provides a means to petition the court for release.
McCuistion, 174 Wn.2d at 388. "This statutory scheme comports with
substantive due process because it does not permit continued involuntary
commitment of a person who is no longer mentally ill and dangerous."
McCuistion, 174 Wn.2d at 388.
The annual review produced by a professional evaluator for the
department is used "to properly identify those who are no longer mentally ill and
dangerous." McCuistion, 174 Wn.2d at 389. Nelson and Brock argue that
allowing the state to retain and rely on other experts at the show cause hearing
will strip the annual review process of objectivity. They contend that unless the
state is required to rely exclusively on the annual report, the commitment scheme
as a whole will not provide substantive due process.
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Nos. 75138-7-1 & 75364-9-1
We disagree. What is critical to the constitutionality of the statute is a
"periodic and timely evaluation of the sexually violent person's mental health
condition." In re Det. of Rushton, 190 Wn. App. 358, 371, 359 P.3d 935 (2015).
The periodic and timely evaluation is provided for in RCW 71.09.070 by making it
an obligation of the department. Allowing the prosecuting agency to present a
different evaluation to make its prima facie case at the show cause hearing
provided for in RCW 71.09.090(2) does not undermine the objectivity of the
annual review process and is not inconsistent with substantive due process.
Cases cited by petitioners do not suggest otherwise. The Supreme Court has
expressly stated that at a probable cause hearing, the trial court "is entitled to
consider all of the evidence, including evidence submitted by the State."
McCuistion, 174 Wn.2d at 382.
Contrary to the argument of petitioners, allowing the state to bring in
expert witnesses other than the department's evaluator is not an absurd result. A
party's discretion to retain and rely on expert witnesses of its choosing is a
regular component of civil and criminal proceedings.
In short, construing "may rely exclusively" as if it meant "shall rely
exclusively" is not warranted by statutory language and is not necessary to avoid
a constitutional problem. The plain language of RCW 71.09.090(2)(b) allows the
state to rely on an annual evaluation at a show cause hearing but does not
prevent the state from presenting an expert witness of its own choosing.
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Nos. 75138-7-1 & 75364-9-1
Affirmed.
WE CONCUR:
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