(dissenting) — I agree with the majority in its rejection of Brooks’ claim that the sexually violent predator statute, chapter 71.09 RCW, violates due process and equal protection because it allows for commitment on a showing below what is constitutionally required. However, I would also affirm the Court of Appeals’ decision that the Legislature has a rational basis for creating a different point in the commitment procedure for consideration of less restrictive alternatives (LRAs) to confinement as between those committed under chapter 71.09 RCW and those committed under chapter 71.05 RCW, the mental illness statute. Therefore, I dissent.
By focusing on the time required for a determination of whether one can be treated with conditions, the majority has missed the essential difference between the proceedings under chapter 71.05 RCW and chapter 71.09 RCW. The rational basis for the Legislature’s distinction concerns the very definition of a sexually violent predator as opposed to someone who is mentally ill. By its recent amendments, the *306Legislature has clarified that a person who can receive voluntary treatment options that exist if the person is unconditionally released from detention does not meet the definition of a sexually violent predator. RCW 71.09.020(12) states:
“Sexually violent predator” means any person who has been convicted of or charged with a crime of sexual violence and who 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.
Therefore, there is no denial of equal protection because the definition of “sexually violent predator” is not at issue in a proceeding conducted under chapter 71.05 RCW.
It is appropriate to be able to put on evidence of treatment which is available to a person who is unconditionally released because such evidence goes to the determination of whether the person is a sexually violent predator. If a person can be treated voluntarily on unconditional release, the person is not, by definition, a sexually violent predator. It is inappropriate to offer evidence of what treatment would be available on a conditional release because it is not relevant to the determination of whether the person may be committed. It is no more a denial of equal protection to preclude evidence of court-ordered LRAs at the hearing to determine whether a person meets the definition of a sexually violent predator than it is to preclude the person from putting on evidence that he or she is not gravely disabled. Nor would it be a denial of equal protection to preclude a person in a chapter 71.05 proceeding from putting on evidence that he or she is not likely to engage in predatory acts of sexual violence if not confined to a secure facility. The inquiry is different for each proceeding, and there is a rational basis for the difference based on the Legislature’s different definitions of one who is mentally ill and one who is a sexually violent predator.
The majority applied the rational basis standard without determining whether a heightened scrutiny standard should apply, finding that the result would be the same under either analysis. Majority at 289.
*307We have held that the commitment of the mentally ill under chapter 71.05 requires consideration of LRAs to total confinement and that, without a valid reason to do so, the State cannot provide different procedural protections for those confined under chapter 71.09. In re Pers. Restraint of Young, 122 Wn. 2d 1, 47, 857 P.2d 989 (1993). Following our decision in Young, the Legislature amended chapter 71.09 to allow the court to consider LRAs after the person has been adjudicated a sexually violent predator.
As the Court of Appeals noted, “Under the rational basis test, a classification is valid if it rests upon a legitimate state objective and is not wholly irrelevant to achieving that objective.” In re Det. of Brooks, 94 Wn. App. 716, 721, 973 P.2d 486 (1999) (citing In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 175, 949 P.2d 365 (1998); State v. Manussier, 129 Wn.2d 652, 673, 921 P.2d 473 (1996)).
“In ascertaining whether a rational relationship exists, we may assume the existence of any necessary state of facts which we can reasonably conceive.” Brooks, 94 Wn. App. at 721 (citing Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d 604 (1997)).
Although the majority identified the proper standard, it did not apply that standard. Rather, the majority substituted its own judgment for that of the Legislature.
In reviewing the constitutional adequacy of involuntary commitment proceedings, we “balance the extent of the individual’s interest against the interests of the State.” Young, 122 Wn.2d at 44. As the Court of Appeals observed, the interest of the State in treating sex offenders and protecting society from their actions “is not only legitimate, it is irrefutably compelling.” Brooks, 94 Wn. App. at 721-22 (citing Young, 122 Wn.2d at 26).
The Young court stated as follows:
It is important to note at the outset that there are good reasons to treat mentally ill people differently than violent sex offenders. See People v. Pembroke, 62 Ill. 2d 317, 322, 342 *308N.E.2d 28 (1976) (A sexually dangerous person “creates different societal problems, and his past conduct is different in degree and kind from the conduct of persons in the larger, more inclusive class defined under the Mental Health Code.”).
Young, 122 Wn.2d at 44-45.
In 1995, an amendment to the sexually violent predator statute narrowed the definition of “sexually violent predator” to “any person who has been convicted of or charged with a crime of sexual violence and who 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.” Former RCW 71.09.020(1) (1995) (emphasis added). The italicized language was added by the amendment.
Since the 1995 amendment, only those persons likely to reoffend if not confined in a secure facility meet the definition of sexually violent predators. In reliance on this narrowed definition, the Court of Appeals held:
Thus, it is rational to impose total confinement before undertaking consideration of whether a less restrictive treatment program is a viable option. The greater dangerousness and different treatment requirements posed by sexually violent predators provide a rational basis for allowing consideration of less restrictive alternatives only after the person has been confined in a secure facility.
Brooks, 94 Wn. App. at 722-23.
Division Two of the Court of Appeals arrived at a different result, on different grounds than the equal protection argument of Brooks, in considering the issue of whether the defendant should be able to put on evidence of LRAs at the commitment hearing. In re Det. of Ross, 102 Wn. App. 108, 6 P.3d 625 (2000); majority at 283.
In response to Ross, the Legislature again amended the sexually violent predator statute in 2001 to make it clear that the court has no authority to order LRAs at a commitment hearing and that the fact finder may not consider LRAs at a probable cause or commitment trial. Majority at 283-84.
*309The majority recognizes that the Legislature has given the court no authority to order LRAs at the commitment trial but concludes that, unless evidence of LRAs which a detainee might undertake voluntarily is permitted, equal protection is violated. The majority would allow the jury to be informed that the court has no authority to order the defendant into an LRA or to undergo treatment in an LRA. The jury is required to unconditionally free the detainee if it thinks he or she could be voluntarily treated in the community, since that person would not meet the definition of sexually violent predator.
The majority finds no rational basis to support the Legislature’s requirement that a person found to be a sexually violent predator first be committed and subject to annual assessment before the court may order LRAs. The majority finds no public safety issue because a person subject to a commitment proceeding must be jailed before the trial, if not already incarcerated. Majority at 290-91.
Next, the majority finds no rational basis for requiring the detainee to be in treatment for one year until an annual assessment can be made, finding that the 45-day pretrial period is sufficient for evaluation and that the court has authority to extend the 45 days to “any additional time approved by the court.” Majority at 291-92. Here, the majority is simply substituting its own view of a sufficient time for evaluation of amenability to LRAs for that which the Legislature has imposed. Such substitution of judgment invades the prerogative of the Legislature and violates separation of powers.
Amere difference of opinion between the majority and the Legislature over whether 45 days “plus any additional time approved by the court” or one year (time of the annual report) is appropriate is the very kind of decision which should be left to the legislative branch. It can hardly be said that such a difference of opinion rises to the level of a basis to find the legislation unconstitutional by the required standard of beyond a reasonable doubt.
*310In Island County v. State, we made the following statement regarding this court’s evaluation of legislative enactments:
[T]he “beyond a reasonable doubt” standard used when a statute is challenged as unconstitutional refers to the fact that one challenging a statute must, by argument and research, convince the court that there is no reasonable doubt that the statute violates the constitution. The reason for this high standard is based on our respect for the legislative branch of government as a co-equal branch of government, which, like the court, is sworn to uphold the constitution. We assume the Legislature considered the constitutionality of its enactments and afford some deference to that judgment. Additionally, the Legislature speaks for the people and we are hesitant to strike a duly enacted statute unless fully convinced, after a searching legal analysis, that the statute violates the constitution.
Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998).
I would affirm the Court of Appeals.
Madsen, J., concurs with Ireland, J.
Reconsideration denied March 12, 2002.