Filed
Washington State
Court of Appeals
Division Two
August 3, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 54665-5-II
M.S.,
PUBLISHED OPINION
Petitioner.
LEE, C.J. — M.S. appeals the trial court’s 180-day involuntary recommitment order. M.S.
argues that the trial court failed to notify him of his statutory right to a jury trial and obtain a waiver
of his statutory right to a jury trial on the record. M.S. also argues that he had a constitutional right
to a jury trial on his 180-day petition for recommitment which required a knowing, intelligent, and
voluntary waiver of his right to a jury trial.
We decline to reach M.S.’s notice challenge based on a statutory right to a jury trial because
he raises the issue for the first time on appeal and he fails to show how the alleged error is of
constitutional magnitude in order to obtain appellate review under RAP 2.5(a)(3). We also hold
that M.S. did not have a constitutional right to a jury trial on his 180-day recommitment petition.
Accordingly, we affirm the trial court’s 180-day recommitment order.
FACTS
On January 23, 2020, the State petitioned under Chapter 71.05 RCW to involuntarily detain
M.S. for an additional 180 days, alleging that his schizoaffective disorder rendered him gravely
disabled. There is no record of a preliminary appearance after the State filed its initial petition for
No. 54665-5-II
commitment. There also is no record on appeal of any other prior proceedings leading to the
State’s petition for 180-day recommitment.
The trial court held an evidentiary hearing on the State’s 180-day recommitment petition
on January 30, 2020. At the hearing, M.S.’s counsel stated that M.S. was present and ready to
proceed to trial on the State’s petition. The trial court proceeded to hear the petition without a
jury.
Joscelyn Rompogren, Ph.D., a psychologist at Western State Hospital, testified.
Rompogren testified that M.S. has a working diagnosis of schizoaffective disorder bipolar type.
Rompogren further testified that M.S.’s schizoaffective disorder would prevent him from
consistently meeting his basic health and safety needs if he were released from the hospital.
Rompogren also testified that M.S. does not have a rational understanding of his need for
psychiatric treatment and that M.S. would not voluntarily seek mental healthcare if he were
released from the hospital.
M.S. also testified at the hearing and stated that he wished to be released from Western
State Hospital. M.S. testified that he would be able to financially support himself if he were
released from the hospital, and he listed several different mental health care facilities that he could
attend if he needed care.
The trial court found by clear, cogent, and convincing evidence that M.S. continues to be
gravely disabled and that less restrictive alternatives to involuntary detention are not in M.S’s best
interests. The trial court ordered M.S. up to 180-days of involuntary treatment. M.S. moved to
revise the trial court’s order finding grave disability, and the court denied M.S.’s motion to revise.
M.S. appeals.
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ANALYSIS
A. NOTICE OF STATUTORY RIGHT TO JURY TRIAL
M.S. argues that the trial court’s 180-day involuntary recommitment order should be
reversed because he was not given notice of his statutory right to a jury trial and the trial court did
not obtain a waiver of that right. We decline to reach the merits of this argument because M.S.
raises the issue for the first time on appeal without showing that it is a manifest error affecting a
constitutional right.
1. Legal Principles
Generally, a party may not raise an issue for the first time on appeal. RAP 2.5(a).
However, RAP 2.5(a)(3) allows a party to raise an issue for the first time on appeal where the issue
involves a “manifest error affecting a constitutional right.” “Application of RAP 2.5(a)(3) depends
on the answers to two questions: ‘(1) Has the party claiming error shown the error is truly of a
constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?”
State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d
578, 583, 355 P.3d 253 (2015)).
In analyzing the asserted constitutional interest, the reviewing court does not assume the
alleged error is of constitutional magnitude. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756
(2009). The reviewing court looks to the asserted claim and assesses whether, if correct, it
implicates a constitutional interest as compared to another form of trial error. Id.
The Involuntary Treatment Act (ITA) provides a respondent to a civil commitment
proceeding with a statutory right to be advised of their right to a jury trial under certain
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circumstances. See former RCW 71.05.300(2) (2019). Former RCW 71.05.300(1) provided in
relevant part that,
The petition for ninety day treatment shall be filed with the clerk of the superior
court at least three days before expiration of the fourteen-day period of intensive
treatment. At the time of filing such petition, the clerk shall set a time for the person
to come before the court on the next judicial day after the day of filing unless such
appearance is waived by the person’s attorney.
And former RCW 71.05.300(2) provided that “[a]t the time set for appearance the detained person
shall be brought before the court, unless such appearance has been waived and the court shall
advise him . . . of his . . . right to a jury trial.”
2. M.S. Fails to Show a Constitutional Error
M.S. argues that the trial court’s alleged failure to notify him of his statutory right to a jury
trial violated his right to procedural due process. We disagree.
We review questions of law, including constitutional due process guarantees, de novo. In
re Det. of Fair, 167 Wn.2d 357, 362, 219 P.3d 89 (2009). “[C]ivil commitment for any purpose
constitutes a significant deprivation of liberty that requires due process protection.” Addington v.
Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); see also In re Det. of Harris,
98 Wn.2d 276, 279, 654 P.2d 109 (1982) (“[D]ue process guaranties must accompany involuntary
commitment for mental disorders.”).
Procedural due process prohibits the State from depriving an individual of protected liberty
interests without appropriate procedural safeguards. In re Pers. Restraint of Bush, 164 Wn.2d 697,
704, 193 P.3d 103 (2008). Procedural due process “[a]t its core is a right to be meaningfully heard,
but its minimum requirements depend on what is fair in a particular context.” In re Det. of Stout,
159 Wn.2d 357, 370, 150 P.3d 86 (2007).
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When determining due process rights, we utilize the balancing test from Mathews v.
Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See In re D.E., 196 Wn.2d 92, 102,
469 P.3d 1163 (2020). Under this test, we balance (1) the private interests affected, (2) the risk of
erroneous deprivation of the private interest created by the procedures used, and (3) the State’s
interest in using the challenged procedure. Mathews, 424 U.S. at 335.
Here, M.S. fails to demonstrate that the trial court’s alleged failure to comply with former
RCW 71.05.300 violated procedural due process. In fact, M.S. fails to undertake the Mathews
balancing test at all. Thus, M.S. does not show that the alleged error is of constitutional magnitude.
See State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993). And because M.S. does not
show that the alleged error is of constitutional magnitude, we decline to review the alleged error
under RAP 2.5(a)(3).
B. NO CONSTITUTIONAL RIGHT TO JURY TRIAL
M.S. asks that we hold that persons subject to a 180-day involuntary commitment
proceeding have a constitutional right to a jury trial which would require a knowing, intelligent,
and voluntary waiver of the jury trial right. We decline to do so.
The Washington Constitution provides that “[t]he right of trial by jury shall remain
inviolate.” WASH. CONST. art. I, § 21. To determine whether this right exists for a particular case,
Washington courts use a two-step analysis. In re Det. of M.W., 185 Wn.2d 633, 662, 374 P.3d
1123 (2016). First, the court identifies the scope of the right to a jury trial in 1889. Id. Second,
the court decides whether “the type of action at issue is similar to one that would include the right
to a jury trial at that time.” Id. “‘The right is the historical right enjoyed at the time it was
guaranteed by the Constitution.’” In re Det. of S.E., 199 Wn. App. 609, 615, 400 P.3d 1271 (2017)
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No. 54665-5-II
(internal quotation marks omitted) (quoting Wings of the World, Inc. v. Small Claims Court, 97
Wn. App. 803, 807, 987 P.2d 642 (1999)), review denied, 189 Wn.2d 1032 (2018).
The Code of 1881 was in effect when Washington adopted its constitution in 1899. In re
Det. of C.B., 9 Wn. App. 2d 179, 183, 443 P.3d 811, review denied, 194 Wn.2d 1005 (2019).
Section 1632 of this code provided an individual with the right to demand a jury trial in a case to
decide whether he could be committed indefinitely to a “hospital for the insane.” S.E., 199 Wn.
App. at 616 n.5. Therefore, at the time Washington adopted its constitution, a constitutional right
to a jury trial only attached to a case involving the State’s request for indefinite detention. C.B., 9
Wn. App. 2d at 184.
Our Supreme Court’s consideration of other provisions of the ITA shows that a proceeding
to decide if a person should be involuntarily committed for 180 days is not similar to the 1889
commitment proceeding that included a right to a jury trial. In M.W., our Supreme Court
considered whether a provision of the ITA providing the procedure for recommitting individuals
found incompetent to stand trial for violent felonies violated the constitutional right to a jury trial.
185 Wn.2d. at 663. The court held it did not. Id. The M.W. court reasoned that
[the] civil commitment process is distinguishable from indefinite civil commitment
schemes that require jury trials on initial commitment because the ITA involves
only short periods of commitment and requires the State to file a new petition and
carry a high burden of recommitment at the expiration of each period (here, every
180 days).
Id.
In C.B., Division One of this court held that “the Washington Constitution does not provide
for a right to a jury for proceedings on a petition for a 90-day involuntary commitment” where the
State alleges that the respondent is gravely disabled. 9 Wn. App. 2d at 185. Finding the M.W.
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court’s reasoning instructive, the court found that “the 90-day commitment period in issue cannot
be distinguished” from the 180-day recommitment period in M.W. Id. at 184.
M.S. contends that he has a constitutional right to a jury trial in a 180-day commitment
proceeding based on S.E., 199 Wn. App. at 624, which he claims concluded that “involuntary
detention lasting more than 60 days required a jury trial.” Br. of Appellant at 17. We disagree.
In S.E., the court held that no constitutional right to a jury trial exists for a 14-day probable
cause hearing under the ITA. 199 Wn. App. at 627-28. Contrary to M.S.’s contention, the S.E.
court did not hold that involuntary detention lasting more than 60 days required a jury trial.
Instead, the S.E. court held that a constitutional right to a jury trial typically attached to indefinite
civil commitment proceedings. Id. at 616-17; see also C.B., 9 Wn. App. 2d at 184. Because S.E.
does not hold that involuntary detention lasting more than 60 days requires a jury trial, that case is
not persuasive.
Here, M.S. fails to show a constitutional right to a jury trial on a 180-day petition for
involuntary commitment. The civil commitment process that applied to M.S. is distinguishable
from the former indefinite civil commitment scheme that required jury trials. M.W., 185 Wn.2d.
at 663. Because the constitutional right to a jury trial appears to only attach to indefinite civil
commitments at the time Washington adopted its constitution, and because the State petitioned for
M.S.’s recommitment for a short, defined period, it follows that M.S. did not have a constitutional
right to a jury trial in his 180-day recommitment hearing. See S.E., 199 Wn. App. at 616-17; see
also C.B., 9 Wn. App. 2d at 184.1
1
M.S. also argues that, because he claims a constitutional right to a jury trial, he had to knowingly,
intelligently, and voluntarily waive his right to a jury trial on the record for the waiver to be valid.
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No. 54665-5-II
Accordingly, we affirm the trial court’s 180-day commitment order.
Lee, C.J.
We concur:
Worswick, J.
Cruser, J.
As discussed above, we hold that there is no constitutional right to a jury trial in a 180-day civil
commitment hearing. And M.S. cites no controlling case applying criminal standard of jury trial
waivers to civil commitment proceedings under Chapter 71.05 RCW. In fact, there is case law
that holds explicitly to the contrary. See C.B., 9 Wn. App. 2d at 190. Therefore, we decline M.S.’s
invitation to require that a respondent demonstrate a knowing, voluntary, and intelligent waiver of
their right to a jury trial on the record in a 180-day civil commitment hearing.
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