f 23
(dissenting) — After Andre Young made a prima facie showing he is no longer a sexually violent predator (SVP), he refused to submit to the statutorily authorized mental health evaluation. Based on this refusal, the trial court held him in contempt of court. The only issue presented here is whether the trial court had the authority to enter that order of contempt. The majority holds a trial court can hold Young in contempt for refusing to submit to a mental examination. I disagree. Under Civil Rule (CR) 37(b)(2)(D), a trial court does not have the authority to enter a contempt order for failure to “submit to physical or mental examination.” I would hold this rule controls the outcome here.
Sanders, J.¶24 “[T]he sexually violent predator Statute is civil, not j criminal, in nature.” In re Pers. Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993). “[The civil] rules govern the procedure in the superior court in all suits of a civil I nature . . . with the exceptions stated in rule 81.” CR l.f “Except where inconsistent with rules or statutes appli-l cable to special proceedings, these rules shall govern alll civil proceedings.” CR 81(a). Since SVP proceedings arel supposedly civil, the civil rules apply to SVP proceedings! unless the “statutes applicable to special proceedings” are| inconsistent with the civil rules. Id.
¶25 The civil rules prohibit the trial court from holding; party in contempt for failure to submit to a psychological exam. CR 37(b)(2)(D) allows a trial court to enter “an ordeif treating as a contempt of court the failure to obey am *697orders except an order to submit to physical or mental examination” (emphasis added), whereas here the trial court entered an order of contempt based solely on Young’s “failure to obey ... an order to submit to physical or mental examination.” The civil rules clearly prohibit the trial court’s action unless the SVP statute is inconsistent with the rule and allows contempt as a sanction.
¶26 But the SVP statute, chapter 71.09 RCW, contains no provision allowing a court to hold a petitioner in contempt for refusing to submit to a mental examination. Although the statute gives “[t]he prosecuting agency ... a right to ... have the committed person evaluated by experts chosen by the state,”4 the statute does not provide a remedy for the petitioner’s failure to comply.5 The SVP statute and CR 37(b)(2)(D) are simply not inconsistent, and the civil rule barring contempt as a sanction applies. This should resolve the issue.
¶27 The majority implicitly recognizes the lack of inconsistency between the SVP statute and the civil rules when it states, “CR 37(b)(2)(D) conflicts with the statutory contempt authority granted under [the contempt statute,] chapter 7.21 RCW. Therefore, chapter 7.21 RCW controls.” Majority at 693. The majority therefore looks beyond the statutes specific to SVP proceedings to see if there is a conflict between the civil rules and any statute of general applicability.
¶28 The majority’s refusal to apply the civil rules to a civil “special proceeding” where the civil rules conflict with ANY statute is certainly a novel application of CR 81. We have never held the civil rules inapplicable under CR 81 because of a conflict with an unrelated statute of general applicability. Instead, we have held the rules inapplicable only where the civil rules conflict with the procedures *698specifically outlined in the statute governing the special proceeding.6
f 29 This means “[t]he matters before us turn on whether [the civil rule] is inconsistent with provisions for special proceedings under chapter 71.09 RCW.” In re Det. of Williams, 147 Wn.2d 476, 489, 55 P.3d 597 (2002); see also In re Det. of Petersen, 145 Wn.2d 789, 801, 42 P.3d 952 (2002) (comparing the civil rules to RCW 71.09.090(2)). But the majority turns its back on authority to deprive Young the protections contained in the civil rules for this “civil proceeding.”
¶30 Even were this novel application appropriate here, the majority is incorrect when it states, “CR 37(b)(2)(D) conflicts with the statutory contempt authority granted under chapter 7.21 RCW.” Majority at 693. As we have repeatedly held, “[a]pparent conflicts between a court rule and a statutory provision should be harmonized and both given effect, if possible.” State v. Thomas, 121 Wn.2d 504, 511, 851 P.2d 673 (1993) (citing Emwright v. King County, 96 Wn.2d 538, 543, 637 P.2d 656 (1981)). Chapter 7.21 RCV is easily harmonized with CR 37(b)(2)(D). The eontemp statute creates contempt of court as a sanction and estab lishes procedures governing its use. We have limited this power through the court rules and prohibited its use t< sanction a failure to submit to a psychological exam. Ther< is no conflict with the contempt statute. This is doubly trus when we follow our mandate to give effect to both provisions whenever possible. See Thomas, 121 Wn.2d at 511.
¶31 Courts have traditionally relied on the “civil” naturt of the SVP statute to strip the accused of most protections offered by the Washington and United States constitutions See Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 *699L. Ed. 2d 501 (1997) (holding because Kansas’s SVP statute is civil, the accused has no Fifth Amendment or ex post facto protections); In re Det. of Young, 122 Wn.2d 1 (holding because the SVP statute is civil, the accused has no protection against ex post facto punishments, double jeopardy, and self-incrimination); In re Det. of Stout, 159 Wn.2d 357, 150 P.3d 86 (2007) (holding because the SVP statute is civil, the accused has no right to confront witnesses); In re Det. of Petersen, 138 Wn.2d 70, 980 P.2d 1204 (1999) (holding because the SVP is civil, the accused has no constitutional right to counsel).
¶32 Even where the accused’s protections stem from civil (not criminal) rules, this court has moved rapidly to ensure those rules do not apply to those accused of being an SVP either. See In re Det. of Turay, 150 Wn.2d 71, 74 P.3d 1194 (2003) (holding the one year time-limit on collateral attack in criminal cases applies to SVP proceedings). Unfortunately the trend continues today and the rule of law is the casualty.
¶33 I dissent.
Alexander, C.J., and Fairhurst, J., concur with Sanders, J.
Reconsideration denied August 15, 2008.
RCW 71.09.090(3)(a).
Although the SVP statute does not provide a remedy, CR 37(b) provides a multitude of remedies available for failure to obey a discovery order. This rule, however, specifically prohibits contempt as a remedy for failing to submit to a mental exam.
See In re Det. of Williams, 147 Wn.2d 476, 488, 55 P.3d 597 (2002) (applying CJ 81 in SVP proceedings). This is equally true in will contests, In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006); actions under the Administratis Procedure Act, chapter 34.05 RCW, King County Water Dist. No. 90 v. City of Renton, 88 Wn. App. 214, 944 P.2d 1067 (1997); garnishment proceedings, Snyder v. Cox, 1 Wn. App. 457, 462 P.2d 573 (1969); and unlawful detainer actions Christensen v. Ellsworth, 162 Wn.2d 365, 173 P.3d 228 (2007).