In re the Detention of Morgan

Stephens, J.

¶31 (dissenting) — An individual facing detention as a sexually violent predator (SVP) should have a procedural due process right to be competent at trial. This is essential to the integrity of the SVP statutory scheme and our constitutional obligations. As the majority recognizes, “It is well settled that civil commitment is a significant deprivation of liberty.” Majority at 320 (citing In re Det. of Stout, 159 Wn.2d 357, 369, 150 P.3d 86 (2007)). For this reason, the quasi-criminal statutory scheme under which persons are civilly committed as SVPs for treatment in the Special Commitment Center (SCC) must comport with due process. Stout, 159 Wn.2d at 369 (explaining that “individuals facing commitment, especially those facing SVP commitment, are entitled to due process of law before they can be committed”). At a minimum this means an alleged SVP has a right to counsel and to a trial by jury at which the Department of Social and Health Services (Department) carries the burden of proof beyond a reasonable doubt that the individual in question is an SVP. See id. at 371-72. It should also mean that an incompetent person cannot be forced through a trial.

¶32 This case primarily concerns procedural due process.3 At its core, procedural due process requires notice and *328a meaningful opportunity to be heard. In re Pers. Restraint of Bush, 164 Wn.2d 697, 704, 193 P.3d 103 (2008). It is a flexible concept and “ ‘calls for such procedural protections as the particular situation demands.’ ” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). As the majority observes, majority at 320-21, we employ the balancing test set forth in Mathews to determine whether a particular procedural protection is warranted in a given context. Stout, 159 Wn.2d at 370. That test requires us to consider (1) the liberty interest at stake, (2) the risk of erroneous deprivation of that liberty interest with the existing procedures and probable value, if any, of additional safeguards and (3) the government interest, including costs and administrative burdens of additional procedures. Id.

¶33 There is no debate that the first factor weighs heavily in Morgan’s favor. A “civil commitment deprives [Morgan] of significant liberty interests.” In re Det. of Morgan, 161 Wn. App. 66, 79, 253 P.3d 394 (2011). This is especially true because the likelihood of release from the SCC is limited. See RCW 71.09.090(4)(b) (explaining that unless an annual review reveals a detainee no longer meets the criteria for confinement, a detainee will receive a full hearing on the continued validity of confinement only if he or she has a severe, permanent physiological change such as a stroke or if he or she successfully completes treatment).

¶34 Resolution of the second factor is considerably more complicated. The Court of Appeals reasoned that there were no additional safeguards that would have minimized or prevented an erroneous deprivation of Morgan’s rights. Morgan, 161 Wn. App. at 80. The Court of Appeals suggested that Morgan received all the process he was due because he attended his SVP commitment trial and “had counsel vehemently defending his rights.” Id. The majority endorses this view, arguing that chapter 71.09 RCW already “provide [s] substantial protection against an errone*329ous deprivation of liberty” and that Morgan’s court-appointed guardian ad litem adequately represented his interests. Majority at 321, 322.

¶35 But the panoply of trial rights the majority identifies mean little if an individual is required to stand trial while incompetent. “Competency” means an individual understands the nature of the proceedings against him and is able to assist in his own defense. State v. Hahn, 106 Wn.2d 885, 895, 726 P.2d 25 (1986). Competency is therefore a necessary predicate to the effective exercise of one’s right to counsel. The United States Supreme Court has recognized the relationship between competency and the rights of the accused in a criminal context.

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. . . . Some have viewed the common-law prohibition “as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself.”

Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (quoting Caleb Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960)). The prohibition on subjecting an incompetent person to criminal proceedings, explained the Drope Court, “is fundamental to an adversary system of justice.” Id. at 172.

¶36 To be sure, we have confirmed many times that an SVP trial is a civil, not criminal, proceeding. See, e.g., In re Pers. Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993). But we have frequently relied on the quasi-criminal procedural protections afforded to an accused SVP to sustain the statutory scheme’s overall constitutionality. See State v. McCuistion, 174 Wn.2d 369, 393, 275 P.3d 1092 (2012) (explaining that amendments to the SVP statutory *330scheme posed a low risk of erroneous deprivation of liberty “[g]iven the extensive procedural safeguards in chapter 71.09 RCW”); Stout, 159 Wn.2d at 370-71 (rejecting procedural due process claim to a confrontation right in light of the “comprehensive set of rights for the SVP detainee”); see also Kansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (noting that Kansas SVP statutory scheme afforded “numerous procedural and evidentiary protections,” which “demonstrate [d] that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards”). Surely, the right to counsel is diluted by incompetency in an SVP proceeding to the same degree it is in a criminal proceeding. When the right to counsel — essentially the very right to mount a defense — is diluted, the procedure for detaining individuals as SVPs loses its constitutional footing.

¶37 The majority engages in little analysis about the value of additional safeguards, the other piece of the second Mathews factor. Requiring that an individual be competent before being tried under chapter 71.09 RCW brings significant value to the process. It ensures that individuals are not subjected to involuntary detention based on the results of what is essentially a trial in abstentia. It ensures that juries are presented with an individual who can understand the nature of the proceedings against him. Perhaps most important, and as will be discussed further below, it ensures that persons detained under chapter 71.09 RCW are amenable to the specific treatment modalities that serve the goals of the SVP scheme, rather than having their treatment undermined by coexisting psychiatric disorders better treated elsewhere.

¶38 In light of these concerns, I would conclude that the risk of erroneous deprivation of liberty is high when an incompetent person is made to stand trial. Consequently, the value of requiring a competent person in the proceedings is significant.

*331¶39 The majority believes the third Mathews factor, the government’s interest, weighs in favor of the Department. Certainly the Department has a compelling interest in “treating sex predators and protecting society from their actions.” Young, 122 Wn.2d at 26. But as noted above, it is difficult to see how this interest is actually served when an incompetent person suffering severe psychiatric disturbances is committed to the SCC. The Department has offered no assurance that the treatment modalities at the SCC can effectively address the kind of mental illness generally treated via civil commitment under chapter 71.05 RCW. The scholarly research available suggests that an incompetent person will not be able to participate in SVP treatment. “[A]ttempting to curb the compulsively lurid behaviors of an SVP that precipitate within the matrix of a florid psychosis or severe cognitive impairments would likely prove futile. . . . [C]urrently available treatments for SVPs finds its provenance in rational, goal-directed, even insightful, cognition.” Alan A. Abrams et al., The Case for a Threshold for Competency in Sexually Violent Predator Civil Commitment Proceedings, 28 Am. J. Forensic Psychiatry, no. 3, 2007, at 7, 22-23.

¶40 The Department has offered nothing to refute such a conclusion. Indeed, during Morgan’s trial, a sex offender treatment provider testified that it is important for an individual receiving sex offender treatment to “know what reality [is]. I mean we’re really dealing with reality in treatment. You’ve done something that got you in trouble, how are you not going to do that again? Yeah, I needed [Morgan] to think clearly.” 1 Verbatim Report of Proceedings (Aug. 4-6, 2008) at 72. Given that the Department’s interest in effective treatment of SVPs is seemingly undermined when it seeks to have an incompetent person adju*332dicated an SVP, the third factor should tip in Morgan’s favor.4

¶41 The majority echoes the Court of Appeals’ concern that requiring competency to be restored prior to an SVP civil commitment proceeding could result in the indefinite housing of alleged SVPs in state mental hospitals. Majority at 323; see also Morgan, 161 Wn. App. at 81-82 (quoting Moore v. Superior Court, 50 Cal. 4th 802, 825-26, 237 P.3d 530, 114 Cal. Rptr. 3d 199 (2010)). But if the Department’s interest is in treating SVPs and treatment requires competency, then it is difficult to see why detention in the SCC is desirable in this instance. Moreover, the Department can bring a petition under chapter 71.05 RCW to civilly commit an alleged SVP and seek to have the person restored to competency. The majority worries this will mean accused SVPs will be housed “in places that are ‘insufficiently secure.’ ” Majority at 323 (quoting RCW 71.09.060(3)). But the Department acknowledges it already houses such persons in our state mental hospitals. See In re Det. of McGary, 128 Wn. App. 467, 470-71, 116 P.3d 415 (2005) (concerning a case in which the Department dismissed an SVP petition without prejudice so that the individual could be involuntarily committed under chapter 71.05 RCW and treated for schizophrenia).

¶42 Contrary to the Department’s argument, it is not dispositive that RCW 71.09.060(3) prohibits the Department from placing an accused SVP in a state facility other than the SCC during SVP proceedings. Resp’t’s Suppl. Br. at 11. That statute reads:

*333Except as otherwise provided in this chapter, the state shall comply with RCW 10.77.220 while confining the person. During all court proceedings where the person is present, the person shall be detained in a secure facility. If the proceedings last more than one day, the person may be held in the county jail for the duration of the proceedings, except the person may be returned to the department’s custody on weekends and court holidays if the court deems such a transfer feasible. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the secretary. The department shall not place the person, even temporarily, in a facility on the grounds of any state mental facility or regional habilitation center because these institutions are insufficiently secure for this population.

RCW 71.09.060(3). This statute should not be read to disallow placement of a suspected SVP in a state mental hospital when the purpose is to have his or her competency restored and the SVP proceedings have been suspended or dismissed until competency is restored. Indeed, that appears to be exactly what the Department did in McGary.5 The only restriction in RCW 71.09.060(3) is that an individual who is currently standing trial as or has been adjudicated an SVP cannot be housed in a state mental hospital.

¶43 Likewise, the majority’s suggestion that the legislature has found commitments under chapter 71.05 RCW unsuitable for the special challenges of SVPs is misplaced. Majority at 322 (citing RCW 71.09.010). Morgan would not be adjudicated as an SVP were he awaiting competency restoration. Nothing suggests that the Department does not already commit persons to state mental hospitals who have perpetrated serious sexual offenses. Moreover, even if RCW 71.09.010 does mean that suspected SVPs cannot be committed to state mental hospitals to restore competency, this *334statute does not control Morgan’s due process right to have his competency restored before he stands trial as a suspected SVP. The Department has not shown that the government’s interest outweighs Morgan’s due process interest in not being tried while incompetent. Indeed, if the concern is finding a suitable placement option for accused SVPs who are incompetent to stand trial, the State’s options are not limited by any lack of statutory authority.

¶44 I am aware that other states have declined to recognize a right to competency during SVP proceedings. See, e.g., In re Commitment of Weekly, 2011 IL App. (1st) 102276, 956 N.E.2d 634, 353 Ill. Dec. 772; Moore, 237 P.3d 530; In re Commitment of Luttrell, 2008 WI App. 93, 312 Wis. 2d 695, 754 N.W.2d 249; Commonwealth v. Nieves, 446 Mass. 583, 846 N.E.2d 379 (2006); State ex rel. Nixon v. Kinder, 235 Mo. App. 168, 129 S.W.3d 5 (2003); In re Det. of Cubbage, 671 N.W.2d 442 (Iowa 2003). This case presents a question of first impression for this court, and no court faced with this exact question has found a due process violation. But several of the courts that have rejected a due process right have relied on a flawed balancing of the Mathews factors. Much like the majority does, they have ignored concerns about effective SVP treatment and the indisputable relationship between competency and the meaningful exercise of the right to counsel and other essential procedural safeguards. See, e.g., Moore, 237 P.3d at 543-47.

¶45 A complete Mathews analysis supports the conclusion that procedural due process requires an accused SVP be competent to stand trial. Although the weight of authority from other jurisdictions has come to the opposite conclusion, no court has presented an analysis that justifies its result. I would not parrot the reasoning of those courts as a substitute for a hard look at what the constitution expects of a justice system. Instead, I would hold that the trial rights afforded to an accused SVP — rights that are given in recognition of the caution with which the government must *335proceed when contemplating a liberty deprivation of this nature — have little force if an accused SVP is not competent. I would reverse the Court of Appeals and hold that an individual has a procedural due process right to be competent when tried as an SVP. I therefore respectfully dissent.6

Gordon McCloud, J., concurs with Stephens, J.

As the majority notes, Morgan also makes a substantive due process argument. My resolution of this case would rest on recognizing a procedural due process right to be competent during an SVP trial, and I would not reach the substantive due process issue.

This court’s reasoning in Stout would not foreclose recognizing a due process right to competency here. In Stout, this court considered an asserted due process right to confrontation and concluded that the right to confrontation was not necessary in light of the process already afforded to an accused SVP. Stout, 159 Wn.2d at 371, 374. But as noted, those very rights — especially the critical right to counsel — have little meaning if the accused SVP is incompetent. It is also worth pointing out that Stout did not make a Mathews argument, which the court noted “tiplped] the third factor of the Mathews test in favor of the State,” as the court had no counterargument to the State’s contention that providing a confrontation right would be prohibitively expensive. Id. at 372 n.11. Here, each party has presented a well-briefed and researched argument based on the Mathews test.

McGary also tends to disprove the suggestion that accused SVPs who are incompetent will never be committed as SVPs. There, the accused SVP had his competency restored at Western State Hospital and was later committed to the SCO.

I agree with the majority’s analysis as to the public trial issue presented here.