(dissenting) — We have previously held “proof of a recent overt act is necessary to satisfy due process concerns when an individual has been released into the community.” In re Personal Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993) (citing In re Harris, 98 Wn.2d 276, 284, 654 P.2d 109 (1982)). To embody this constitutional requirement the Washington State Legislature subsequently amended the statute at issue to require proof of a recent overt act as a precondition to incarcerating “a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement . . . .” RCW 71.09.030. Unfortunately, the majority reduces this overt act requirement to a meaningless inquiry into the physical location of an individual on the day a sexually violent predator petition is filed. Moreover the majority reaches out to make its point in a case not even subject to our jurisdiction.
No Jurisdiction
In August 1996 Henrickson sought, and was denied, discretionary review in this court to contest the sufficiency of the sex predator petition filed against him because the petition did not allege a recent overt act. Thereafter he was committed as a sexually violent predator on a stipulation preserving his right to raise the “recent overt act” issue on appeal, which was heard in October 1998. The Court of Appeals affirmed Henrickson’s commitment notwithstanding his arguments. However, in reaching its conclusion the *699Court of Appeals reasoned that excusing the State from alleging and proving a recent overt act required more than a simplistic showing that an individual is incarcerated on the day the petition was filed. In re Detention of Henrickson, 92 Wn. App. 856, 863, 965 P.2d 1126 (1998).
Although the State had won the appeal, it objected to the reasoning of the Court of Appeals and sought review to contest the appellate court’s theory. Henrickson did not file his own petition for review, or a cross-petition, but did file an answer, wherein Henrickson opposed the State’s petition for review and alternatively requested review of the recent overt act issue — should review be granted on the State’s petition. See Answer to State’s Pet. for Review at 8 (“Mr. Henrickson opposes the State’s petition for review for the reasons stated below. In the event this Court accepts review, Mr. Henrickson asks the Court to review the issues presented herein.”).
The State’s petition, however, cannot merit review as a matter of law because the State lacks standing to seek review of an opinion which ultimately held in its favor. Because the State “merely objects to the reasoning by which” the Court of Appeals reached its result, City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 685, 743 P.2d 793 (1987), it “cannot be considered ‘aggrieved’, and therefore does not have standing to appeal.” Id.-, see RAP 3.1. However citing Taxpayers at page 685, the majority states we properly accepted review “because Henrickson cross-petitioned for review of the same issue . . . .” Majority at 691 n.l. I disagree.
RAP 2.4(a) permits an appellate court to grant a respondent affirmative relief only if the respondent also seeks review of the decision by the timely filing of a notice for discretionary review. And RAP 13.4(a) requires a petition for review to be filed within 30 days of the decision terminating review. Henrickson did not request affirmative relief but merely asked this court to deny review and uphold the decision of the Court of Appeals. See Answer to State’s Pet. for Review at 20. Further, Henrickson filed his *700answer to the State’s petition for review long after the deadline had lapsed for filing an initial petition. As the State lacked standing to seek review and Henrickson did not seek review, it necessarily follows that we are without jurisdiction to act in this case. RAP 13.6 (“Supreme Court accepts discretionary review of a decision of the Court of Appeals by granting ... a petition for review.”).4
Due Process — Recent Overt Act Requirement
The Washington sexually violent predator statute empowers a prosecuting attorney to file a petition alleging that a person is a “[sjexually violent predator” when such an individual has been convicted of or charged with a crime of sexual violence and 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.” RCW 71.09.020(1) (emphasis added). The statute defines “[mjental abnormality” as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.” RCW 71.09.020(2) (emphasis added). This connection between mental illness and dangerousness has led to the following observation:
Necessarily one who simply commits a violent sexual act through volitional choice is outside the statute. Such an individual is what the criminal law is made for. But in theory the person who does this because his “mental abnormality” or “personality disorder” “makes” him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices.
*701Therefore evidence is necessary to distinguish between those who volitionally act of their free will and those who don’t.
In re Detention of Campbell, 139 Wn.2d 341, 373, 986 P.2d 771 (1999) (Sanders, J., dissenting). Consistent with this principle, our previous cases have required evidence of dangerousness as the result of a mental disorder to justify the “massive curtailment of liberty,” Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972), inherent in an involuntary commitment.
In re Harris, 98 Wn.2d 276, 654 P.2d 109 (1982) examined whether proof of a recent overt act was required to provide a constitutional basis for involuntary detention in the more usual civil commitment context. Assuming dangerousness may in fact provide a basis for detention, we noted many courts recognize the due process clause of the Fourteenth Amendment to the United States Constitution requires proof of a recent overt act to constitutionally support a finding of dangerousness. Id. at 284 (citing Suzuki v. Alba, 438 F. Supp. 1106, 1110 (D. Haw. 1977), aff’d in part, dismissed in part, rev’d in part sub nom. Suzuki v. Yuen, 617 F.2d 173, 178 (9th Cir. 1980); Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976); Lynch v. Baxley, 386 F. Supp. 378, 391 (M.D. Ala. 1974), superseded by state statute as stated in Webster v. Bartlett, 709 So. 2d 1226 (Ala. Civ. App. 1997); Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974)). Adopting the logic of these federal cases we thus held “a showing of a substantial risk of physical harm as evidenced by a recent overt act” is necessary to comport with substantive due process. In re Harris, 98 Wn.2d at 284.
In Young, we again addressed the contention that due process requires evidence of a recent overt act to prove dangerousness. We noted that because sexually violent predators are often incarcerated prior to commitment, a recent overt act requirement under such circumstances *702“would be impossible to meet.”5 In re Personal Restraint of Young, 122 Wn.2d at 41.
Other jurisdictions have rejected the precise argument made by petitioners because it creates an impossible condition for those currently incarcerated. We agree that “[d]ue process does not require that the absurd be done before a compelling state interest can be vindicated.” Indeed, in drafting the Statute, the Legislature expressly noted that the involuntary commitment statute, RCW 71.05, was an inadequate remedy because confinement prevented any overt act. We conclude that where the individual is currently incarcerated no evidence of a recent overt act is required.
Id. (citations omitted) (emphasis added) (quoting People v. Martin, 107 Cal. App. 3d 714, 725, 165 Cal. Rptr. 773 (1980)).
After Young, the Washington State Legislature amended the sexually violent predator act to include a recent overt act statutory requirement. RCW 71.09.020(5) was amended to define a “[rjecent overt act” as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” And RCW 71.09.030 was amended to require the State to allege and prove a recent overt act. before incarcerating “a person who at any *703time previously has been convicted of a sexually violent offense and has since been released from total confinement . . . Both Henrickson and Halgren fall within the literal scope of this statutory requirement because each was released from total confinement after their conviction of a sexually violent offense. Notwithstanding, the State is unwilling or unable to allege, much less prove, the commission of an overt act during that period of release from total confinement. This failure of proof raises the horrendous specter that these men are not “sexual predators” as that term is defined by the act but are nevertheless imprisoned after the payment of their debt to society as measured by completion of a maximum term in prison.6
Here both Henrickson and Halgren were released from confinement and lived in the community for a significant period of time prior to the filing of the commitment peti*704tions, thus not only providing the State “the opportunity to prove dangerousness through evidence of a recent overt act,” but also bringing them literally within the statutory mandate, which requires a recent overt act to be alleged and proved. In fact, Henrickson remained in the community from April 1990 until he was resentenced for the 1990 offense in December 1993 absent any overt act of sexual misconduct. During this same period Henrickson successfully completed over three years of community-based sex offender treatment. Henrickson was then reincarcerated from December 1993 until August 29, 1996 — a period of time significantly shorter than the three years and eight months he spent incident-free in the community.
Similarly, Halgren spent three months in the community pending sentencing on a 1996 conviction for unlawful imprisonment, a nonsexual offense. See infra note 8. Finding that Halgren had the opportunity to reoffend, and farther finding that the State failed to meet its threshold duty to show a recent overt act during that period, the trial court properly dismissed the sexual predator petition and ordered his release. The State, however, moved to stay his release, not because he probably would reoffend but because he probably would not — i.e., the State resisted release because it feared it would be then required to prove a recent overt act. Emergency Mot. for Stay & Expedited Briefing Schedule at 28, In re Detention of Halgren, No. 67793-0 (Wash. Supreme Ct. Mar. 23, 1999) (sealed). Although a majority of this court agreed to stay the release, I dissented based on the absurdity of denying a man his liberty due to the fear he would not reoffend.
The reasoning of Young is clear: the State is excused from the constitutional requirement of proving a recent overt act only when such requirement would be “absurd” due to an individual’s lack of opportunity to reoffend while incarcerated. However there is nothing “absurd” about requiring proof of an overt act when an individual — such as Henrickson or Halgren — has spent extensive time in the community with ample opportunity to reoffend subsequent *705to his predicate sex offense. Simply put, that Henrickson and Halgren were incarcerated on the same day as the sex predator petitions were actually filed should not logically affect the requirement to prove an overt act when they were free in the community and not incarcerated.
What is absurd, I proffer, is the majority’s selective emphasis on dicta7 from Young taken completely out of a dissimilar factual context to further the majority’s desired outcome, which robs the constitutional requirement of its reason. See Majority at 694-95.
We have previously expressed dissatisfaction with bright-line rules in the context of due process.
“ ‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, ‘due process’ cannot be imprisoned within the treacherous limits of any formula.”
In re Discipline of Deming, 108 Wn.2d 82, 97, 736 P.2d 639, 744 P.2d 340 (1987) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring)). Nevertheless, the majority reduces an individual’s due process constitu*706tional guarantee to a formulaic inquiry into the individual’s physical location on the day the petition is filed. The Court of Appeals has recently opined it does “not believe that the due process protection mandated by Young is so tenuous.” In re Detention of Albrecht, 98 Wn. App. 426, 433, 989 P.2d 1204 (1999). Neither do I.
Two separate divisions of our Court of Appeals have rejected this arbitrary bright-line rule. In the instant case, Division One correctly noted: “The fact that an individual is incarcerated on the day the petition is filed is not, by itself, dispositive. The more fundamental question is whether there is evidence of future dangerousness sufficient to overcome the individual’s liberty interest.” Hen-rick son, 92 Wn. App. at 863. More recently, Division Three unequivocally rejected the argument that the State need not allege and prove a recent overt act if the alleged predator is incarcerated at the time the petition is filed. “Once a person has been released from total confinement and placed in the community subject to the conditions of community custody, he or she may be the subject of a sexual predator petition only if the State alleges a recent overt act.” Albrecht, 98 Wn. App. at 436. See also In re Detention of Aqui, 84 Wn. App. 88, 97, 929 P.2d 436 (1996) (“Due process requires the State to prove a recent overt act if a person is released to the community before the petition is filed.”). The dissent in Young also recognized the absurdity of Young’s dicta, if read literally:
By reading in this new requirement, the court creates two classes of persons under the same statute: those incarcerated versus those who are not. This is a distinction without a difference. Immediately upon release, an individual must now commit an overt act to be incarcerated under the Statute, whereas the day before release, the same individual could be committed without proof of an overt act. This new distinction is arbitrary, violating even a rational basis review.
Young, 122 Wn.2d at 66-67 (Johnson, J., dissenting).
The practical effect of the majority’s retreat from reason is demonstrated as follows: An individual may be released *707from confinement and lawfully reside in the community for a number of years, but if he is incarcerated on the day the State files its sexually violent predator petition, such individual may spend the rest of his life confined as a sexually violent predator without necessity to show an overt act to justify a finding of continued dangerousness.
In Albrecht, the Court of Appeals illustrated the dangerousness of the majority’s position with the following hypothetical:
What if he had been living in the community under supervision for almost two years but was serving five days in jail for a DUI [driving under the influence] or some other minor community supervision violation? If the State had filed its petition on the day that he was incarcerated, would it be relieved of alleging and proving a recent overt act? We do not believe that the due process protection mandated by Young is so tenuous. If so, what would prevent the State from always initially proceeding with an allegation of a community supervision violation. For a person with a history of sex offenses, the conduct that the State believes constitutes a “recent overt act” would also likely be a violation of community supervision. The alleged predator could be incarcerated for the community supervision violation based upon proof of that conduct by a preponderance of the evidence. Once incarcerated, the State could file a sexually violent predator petition and be relieved of its obligation to allege and to prove a recent overt act by proof beyond a reasonable doubt.
Albrecht, 98 Wn. App. at 433 (emphasis added). Thus, if an individual violated a mandatory term of community placement such as possessing a controlled substance or failing to remain within a specified geographic boundary, see RCW 9.94A.120, he could be reincarcerated. See RCW 9.94A-.200(3); RCW 9.94A.207. Under the majority’s unprecedented rule, such incarceration would arguably “stem” from the underlying sex offense because such offense is not discharged until all sentencing conditions have been met. See RCW 9.94A.220. Accordingly, the majority circumvents due process and relieves the State from proving a recent overt act in circumstances where an individual is incarcer*708ated for an offense wholly unrelated to the allegations in the commitment petition.8
The consequence of all this is the mere fact of incarceration at the moment a petition is filed, as the majority now holds, allows the State to dispense with the constitutional requirement of showing an overt act to prove its case.
Not surprisingly, the majority fails to explain why, if the State has the duty to prove dangerousness through evidence of an overt act, at least as recent as the last opportunity available to the accused, imposing such a requirement “would create a standard which would be impossible to meet,” Young, 122 Wn.2d at 41 — unless it means to say the standard “would be impossible to meet” for someone who is not a sex predator. The majority simply offers the following as its sole justification:
To follow the Court of Appeals approach in Henrickson would elevate Henrickson’s and Halgren’s periods of temporary release during the disposition of their criminal cases over the sexually related criminal acts that actually gave rise to their extensive periods of confinement. This would lead to absurd results because, in effect, any postarrest supervised release for whatever reason would provide the opportunity to circumvent the distinctions of the statute.
Majority at 696. The majority’s rationale overlooks the essential inquiry mandated by Young — whether the State has the opportunity to prove continued dangerousness through *709evidence of a recent overt act — and demonstrates an irrational fear that allowing individuals such as Henrickson and Halgren to enforce their constitutional right to due process will result in some sort of miscarriage of justice. Majority at 696.
The majority’s rationale disregards the theoretical purpose of the sex predator statute — treatment and incapacitation of those who are supposedly chronically incapable of controlling their behavior. An individual suffering from a “mental abnormality” which “makes” him reoffend by definition cannot control his or her behavior because the abnormality or personality disorder “predisposes the person to the commission of criminal sexual acts . . . .” RCW 71.09.020(2) (emphasis added). It is this deep-seated lack of control which makes a “sex predator” what the legislature says he is, and sufficiently dangerous to constitutionally justify indefinite confinement following the expiration of a criminal sentence. It necessarily follows that a “bona fide” sex predator will — from the moment he is released from incarceration — commit or attempt to commit criminal sexual acts due to his nonvolitional predisposition. Thus, requiring the State to prove an overt act under such circumstances is absolutely necessary yet not sufficient to demonstrate the existence of the condition which subjects the individual to imprisonment under this statute.
Although both Henrickson and Halgren were released from confinement and lived in the community for a significant period of time, the majority disregards these periods of release and maintains their most recent convictions constitute either a sexually violent offense, RCW 71.09.020(6), or a recent overt act, RCW 71.09.020(5). Majority at 696. This illogical approach ignores the legislative intent of RCW 71.09.030, enacted to require the State to meet an additional burden of proof when an individual is released to the community prior to commitment proceedings, and allows any act to constitute a “recent” overt act, thus robbing the requirement of an essential element — recency. The absence of a recent overt act, when an individual has the *710opportunity to reoffend as is the case here, is extremely meaningful because it demonstrates the accused individual does not exhibit the uncontrollable, predisposing, dangerous mental state of the sex predator, which in theory under the statute must have persisted since at least the time of the last violent sex crime committed by the accused.
Recall that proof of the conviction of the predicate sex crime is generally a prima facie element of the State’s proof. RCW 71.09.030, .060. If the State is excused from its duty to establish an individual’s continued dangerousness through proof of an overt act that is at least as recent as the last opportunity for reoffense, the following fears will be realized:
[B]y authorizing the indefinite confinement in mental facilities of persons who are not mentally ill, the Statute threatens not only the liberty of certain sex offenders, but the liberty of us all. By committing individuals based solely on perceived dangerousness, the Statute in effect sets up an Orwellian “dangerousness court”, a technique' of social control fundamentally incompatible with our system of ordered liberty guaranteed by the constitution ....
Young, 122 Wn.2d at 60 (Johnson, J., dissenting).
But our newly enlightened majority reasons that requiring proof of an overt act during a period of release, regardless of the length of release, is “absurd” if an individual spends subsequent time in prison, regardless of the length of subsequent incarceration. Majority at 696. Not so. This assumes a transitory mental state inconsistent with the legislative finding that the alleged condition is “very long term.” RCW 71.09.010. Moreover, by disregarding this legislative finding, the majority fails to acknowledge the legislative distinction between standard civil commitments and the sex predator commitment scheme:
Standard civil commitments are usually triggered by relatively recent acts of violence or threatening behavior. The issue for prediction is whether the individual will be violent in the relatively short term. On the other hand, sex offender *711commitment predictions are likely to be based on violence that is quite remote, occurring often years or decades before the commitment proceedings. This is because sex offender commitments are aimed at sex offenders who have been in prison serving lengthy sentences for the same past behavior. In addition, sex offender commitment statutes appear to be aimed at long term, rather than short term, predictions.
Eric S. Janus, Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender Commitments, 72 Ind. L.J. 157, 200-01 (1996) (emphasis added). Thus, although we have rightly held evidence of dangerousness “must be recent to be meaningful,” Harris, 98 Wn.2d at 284, this does not mean the absence of a remote overt act is meaningless in the sexual predator context. Far from it.
Washington courts have previously held “in considering whether an overt act, evidencing dangerousness, satisfies the recentness requirement, it is appropriate to consider the time span in the context of all the surrounding relevant circumstances.” In re Detention of Pugh, 68 Wn. App. 687, 695, 845 P.2d 1034 (1993). If an individual has spent time in the community following his most recent sex offense, at minimum, due process and the statute require the State to prove an overt act during that period of release before the individual may be committed for the rest of his fife. If he truly is a sex predator, an overt act during this most recent period of release will be there. But if it is not there, the State’s proof fails to cross the most minimal threshold of reliability which our constitutional process requires because, in theory, a sex predator is one who will inevitably reoffend and be unable to volitionally control his supposed predisposition.9 And we are imprisoning men *712outside the criminal process who do not meet the statutory criteria for “civil” imprisonment.
Conclusion
An individual’s liberty interest is fundamental in nature. “As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference . . . freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution.” Foucha v. Louisiana, 504 U.S. 71, 90, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (Kennedy, J., dissenting). The protection of liberty from erroneous deprivations thereof should be our primary concern in “civil” imprisonment cases. But our majority refuses to protect the liberty of individuals like Henrickson and Halgren, arbitrarily disregarding their statutory and constitutional rights, because they happened to be in prison on the day the sex predator petitions were filed.
Accordingly, I dissent.
Reconsideration denied July 20, 2000.
Despite the unavailability of either direct or discretionary review, we may, in unusual circumstances, exercise our inherent power of review to determine whether a trial court’s decision is arbitrary, capricious, or contrary to law. Kreidler v. Eikenberry, 111 Wn.2d 828, 837, 766 P.2d 438 (1989). But here, we granted the State’s petition for discretionary review without invoking our inherent power of review. See Order Granting Review, In re Detention of Henrickson, No. 67520-1 (Wash. Supreme Ct. May 10, 1999). Further, it cannot be said that discretionary review was “unavailable”; rather, review was simply improperly sought by the State as it was not “aggrieved.”
Standing alone, this proposition is doubtful. Several studies indicate a high rate of sexual coercion among incarcerated prisoners. See Cindy StruckmanJohnson et al., Sexual Coercion Reported by Men and Women in Prison, 33 J. Sex Res. 67, 67 (1996) (anonymous survey of prisoners revealed 20 percent had been forced or pressured to have sexual contact against their will while incarcerated); id. at 68 (citing Wayne S. Wooden & Jay Parker, Men Behind Bars: Sexual Exploitation in Prison (Plenum Press 1982) for the finding that 14 percent of a randomly selected sample of 200 inmates reported being pressured into having sex against their will). Others have correctly observed that prisoners serving prison terms can demonstrate violent or sexually explicit conduct even while in prison. See John Q. LaFond, Washington’s Sexually Violent Predators Statute: Law or Lottery? A Response to Professor Brooks, 15 U. Puget Sound L. Rev. 755, 771 (1992) (evidence such as planning sex crimes or sexually violent fantasies constitutes tangible proof of an inmate’s current dangerousness); In re Personal Restraint of Young, 122 Wn.2d 1, 67, 857 P.2d 989 (1993) (Johnson, J., dissenting) (“Evidence amounting to a 'recent overt act’ is often present even while in jail. Such evidence could be based on prison activities or conduct, such as inappropriate drawings of sexual encounters with children.”). Thus, Young’s conclusion that prisoners cannot possibly demonstrate an overt act while incarcerated is questionable at best.
RCW 71.09.060(1) does not change this analysis. That statute provides in part: “If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act.” The statute thus affirmatively requires proof of a recent overt act when a person is not incarcerated on the day the sex predator petition is filed but does not dispense with the requirement when he is incarcerated. Beyond the plain language of the statute, there are several reasons why a contrary inference would be improper: (1) It would unnecessarily create a statutory conflict between RCW 71.09.030 and .060, whereas it is our duty to avoid creating such a conflict when practical, Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 314, 884 P.2d 920 (1994); (2) statutes curtailing civil liberties should be strictly construed so as not to expand their scope beyond that minimally required by the language itself, In re Detention of J.R., 80 Wn. App. 947, 956, 912 P.2d 1062 (1996); In re Detention of Swanson, 115 Wn.2d 21, 31, 804 P.2d 1 (1990); Dunner v. McLaughlin, 100 Wn.2d 832, 850, 676 P.2d 444 (1984); In re Cross, 99 Wn.2d 373, 379, 662 P.2d 828 (1983); and (3) statutes should be construed in a constitutional fashion when possible. Id. at 382-83. As the Court of Appeals recently recognized:
RCW 71.09.030 must be consistent with RCW 71.09.060. It makes no sense for RCW 71.09.030, the statute that specifies the requirements for filing a sexually violent predator petition, to be in conflict with RCW 71.09.060, the statute that establishes the requirements for proof. And, RCW 71.09.060 makes the distinction mandated by Harris and Young not by referring to persons who are “released from total confinement” but by referring to persons who are “living in the community after release from custody.” These terms must be analyzed in relationship to one another and, if possible, harmonized to ensure proper construction of each provision.
In re Detention of Albrecht, 98 Wn. App. 426, 434, 989 P.2d 1204 (1999) (citation omitted).
The word “dicta” means observations or remarks made in pronouncing an opinion concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954). Statements that constitute “obiter dictum” need not be followed. DCR, Inc. v. Pierce County, 92 Wn. App. 660, 683, 964 P.2d 380 (1998), review denied, 137 Wn.2d 1030, 980 P.2d 1283 (1999), cert. denied,_U.S._, 120 S. Ct. 1553,146 L. Ed. 2d 459 (2000). In Young we stated: “We conclude that where the individual is currently incarcerated no evidence of a recent overt act is required.” In re Personal Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993). This statement goes well beyond the legal principle necessary to decide Young because the petitioner there was continuously incarcerated from the date of his most recent conviction until the filing of the sex predator petition. Id. at 13-14. Although the factual situation presently before us was not contemplated by the Young court, the majority nevertheless relies on the expansive dicta in Young, without regard to the extensive time Henrickson and Halgren spent in the community following commission of their predicate offenses — a mere “factual nuance” according to the majority. Majority at 695.
This is precisely Halgren’s case. Halgren was serving time for unlawful imprisonment, a nonsexual offense under the Sentencing Reform Act of 1981 (RCW 9.94A), when the State filed its sexually violent predator petition. Although the majority refers to Halgren’s “history of sexually related offenses, including ... a 1996 conviction for unlawful imprisonment” involving a prostitute, majority at 691, this statement does not reference a “sexually violent offense” as that term is defined in RCW 71.09.020(6). Although unlawful imprisonment may qualify as a predicate “sexually violent offense” if proved to be sexually motivated beyond a reasonable doubt at the time of conviction or commitment, RCW 71.09.020(6)(c), the State has yet to convince a panel of jurors Halgren’s conviction for unlawful imprisonment was sexually motivated. See State v. Halgren, 137 Wn.2d 340, 971 P.2d 512 (1999) (holding because the prosecution chose not to file a special allegation of sexual motivation, which requires proof beyond a reasonable doubt, the State was not allowed to seek an exceptional sentence based upon the alleged sexual nature of Halgren’s crime).
“In the dark heart of the sex predator statute is the legislative denial of free ■will and individual responsibility.” In re Detention of Campbell, 139 Wn.2d 341, 373, 986 P.2d 771 (1999) (Sanders, J., dissenting).