¶67 (dissenting) The trial court concluded that the new civil commitment statute at issue in this case, former RCW 71.05.320(3)(c)(ii) (2013), was unconstitutional. It ruled that the statute provided no procedure for evaluating the parties’ evidence, no burden of proof, and no standard of proof—so it was unconstitutionally vague. It also ruled that the statute permitted continued civil commitment based on allegations that the respondents “continue [ ] to suffer from a mental disorder or developmental disability that results in a substantial likelihood of committing acts similar to the charged criminal behavior,” former RCW 71.05.320(3)(c)(ii), but gave the respondents no appropriate means of testing these allegations—so it deprived them of due process.
¶68 The State and the majority tacitly acknowledge these problems identified by the trial court. The majority upholds the statute anyway. But it does so by substantially rewriting it to incorporate the missing procedural safeguards.
¶69 That rewrite does make the statute less vague and does fill its gaps with procedures, evidentiary standards, *667and burdens of proof that satisfy the constitutional concerns. But this rewrite goes far beyond our court’s authority to construe statutes: it actually revises one. Because this court lacks the power to usurp the legislature’s role in this fashion, I respectfully dissent.
ANALYSIS
¶70 Where legislative intent is clear, a court may construe a vague statute to save it from total invalidation. State v. Martinez, 85 Wn.2d 671, 675-80, 538 P.2d 521 (1975), overruled on other grounds by State v. Smith, 93 Wn.2d 329, 336 n.2, 610 P.2d 869 (1980); see Skilling v. United States, 561 U.S. 358, 405-06, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010). But a court may not, under the guise of “construing” the statute, “attempt! ] a wholesale revision of it.” Martinez, 85 Wn.2d at 680. That would usurp the legislature’s role. Id.
¶71 The majority violates this rule by making no fewer than four separate substantive amendments to former RCW 71.05.320(3)(c)(ii) to answer the respondents’ constitutional challenges. First, the majority changes the word “ ‘proof’ ” to “evidence”10 so as to lessen the burden on the committed person. The legislature’s statute required the committed person to present “proof” of a changed condition to obtain a full hearing on whether commitment could continue; the majority’s change lowers this burden slightly. It requires that person to “present! ] [evidence] through an admissible expert opinion that the person’s condition has so changed . . . that the mental disorder or developmental disability no longer presents a substantial likelihood of the person committing acts similar to the charged criminal behavior.”11 Second, the majority significantly increases the burden on the State. It accomplishes this increase by *668changing the phrase “prima facie evidence”12 to “proof by clear, cogent, and convincing evidence”13 so that the statute now requires the State to “presentí ] [proof by dear, cogent, and convincing] evidence that the person continues to suffer from a mental disorder or developmental disability that results in a substantial likelihood of committing acts similar to the charged criminal behavior.”14 Third, the majority takes procedural protections from a different part of the involuntary treatment act (ITA) and inserts them into the challenged statute. These insertions make former RCW 71.05.320(1) and (2) (2013)—which require the superior court to determine, in the context of a full evidentiary hearing on the State’s petition for continued confinement, whether a less restrictive treatment alternative is appropriate—applicable at the preliminary hearing stage under former RCW 71.05.320(3)(c)(ii) as well.15 And finally, the majority borrows two additional procedural protections from another part of the ITA—it copies RCW 71.05-.360(5)(b), which grants the right to counsel “before and at the probable cause hearing” that must occur “within seventy-two hours of the initial detention,” and RCW 71.05-.360(5)(e), which grants the right to refuse medications beginning 24 hours before that probable cause hearing— and inserts them into former RCW 71.05.320(3)(c)(ii).16
¶72 Having rewritten former RCW 71.05.320(3)(c)(ii) to incorporate these new procedural safeguards and eviden-tiary standards, the majority concludes that the statute is no longer vague. Majority at 662. The majority is certainly correct; this new version of the statute is far superior to the one our legislature wrote. The problem is that this new version is not merely a construction of the statute we were *669asked to evaluate—it is a wholesale rewrite. And it certainly doesn’t reflect any clear legislative intent.
¶73 Indeed, the legislative intent underlying former RCW 71.05.320(3)(c)(ii) is far from clear. In this court, the State offered a contradictory explanation of that intent. On one hand, it argued that the amendment was intended to facilitate the continued civil commitment of people who “no longer met the criteria for . . . civil commitment” under the old regime. Opening Br. of State of Wash. Dep’t of Health & Human Servs. at 6 (emphasis added). And it relied on our case law addressing the rights of sexually violent predators— persons this court has held to be more dangerous and less likely to be cured, and therefore entitled to fewer procedural safeguards relative to other individuals with mental illness—to argue that former RCW 71.05.320(3)(c)(ii) satisfies constitutional standards. See majority at 649-51. On the other hand, the State argued that the amendment didn’t change the criteria for civil commitment at all. Opening Br. of State of Wash. Dep’t of Health & Human Servs. at 35-36 (arguing that the amendment creates no risk of erroneous civil commitment because if a person can’t provide an expert opinion to contradict the State’s petition, “then there is minimal likelihood that the [person] would be able to prevail in a full evidentiary hearing”). The majority embraces the latter argument, rewriting former RCW 71.05-.320(3)(c)(ii) so that it “does not deny the procedural protections in other provisions of the ITA.” Majority at 658.
¶74 But to the extent that we can glean any evidence of the legislature’s intent from the legislative record, this evidence suggests that former RCW 71.05.320(3)(c)(ii) was designed to do exactly that—to diminish the procedural protections afforded individuals like the respondents. As the majority points out, the legislature enacted former RCW 71.05.320(3)(c)(ii) to address “a gap in the statutory system” into which “violent, mentally ill individuals” fall when they are incompetent to stand trial. Majority at 651 *670(citing Laws of 2013, ch. 289, § 1). Because these individuals cannot be incarcerated or committed long term as “not guilty by reason of insanity,” the State wanted to create a special statutory scheme to provide proper treatment for these individuals and protect public safety Id. This legislative history suggests an intent to treat individuals like the respondents—those found by a court to have committed “acts . . . constituí [ing] a violent offense,” RCW 71.05-.280(3)(b), and also deemed incompetent to stand trial for those acts—more like insanity acquittees.
¶75 What the majority fails to acknowledge is that persons acquitted by reason of insanity may be civilly committed under a lower evidentiary standard: the State must prove that they are mentally ill and dangerous by only a preponderance of the evidence. Jones v. United States, 463 U.S. 354, 368, 103 S. Ct. 3034, 77 L. Ed. 2d 694 (1983); State v. Wilcox, 92 Wn.2d 610, 613-14, 600 P.2d 561 (1979). If the legislature actually intended to treat people such as the respondents more like insanity acquittees, then it would follow that the legislature intended to make it easier for the State to continue their commitment. In other words, the legislature might well have intended former RCW 71.05-.320(3)(c)(ii) to impose a lower evidentiary burden on the State than the clear, cogent, and convincing standard; to relieve the court of its responsibility to rule on less restrictive alternatives; and/or to omit any guarantee of counsel.
¶76 I agree with the majority that such legislative intentions would raise grave procedural due process concerns, particularly with respect to burdens of proof and eviden-tiary standards. Insanity acquittees may be committed under the lower preponderance standard for reasons that do not apply to individuals, like the respondents, deemed incompetent to stand trial. First, in an insanity acquittal, the acquittee him- or herself advances the argument that mental illness caused the dangerous behavior; second, the acquittee does so while competent; and third, a fact finder has already found, beyond a reasonable doubt, that the *671acquittee committed at least one criminal act because of mental illness. Born v. Thompson, 154 Wn.2d 749, 760-62, 117 P.3d 1098 (2005).17 But we cannot address these constitutional problems by rewriting former RCW 71.05-.320(3)(c)(ii) in apparent contravention of the legislature’s intent.
CONCLUSION
¶77 Procedural due process analysis is flexible by design. In the civil commitment context, it allows the legislature to tailor the procedures governing commitment and periodic review to the needs of specific populations. See Jones, 463 U.S. at 367-68 (insanity acquittees and other civil commitment candidates subject to different standards of proof because “ ‘due process is flexible and calls for such procedural protections as the particular situation demands’ ” (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972))). Thus, there are a variety of ways in which the legislature could address the issues posed by individuals whose mental illness makes them incompetent to stand trial for acts of violence. The key point here is that the legislature, not this court, has the authority to write the laws that do so.
¶78 The legislature enacted former RCW 71.05-.320(3)(c)(ii). Like the trial court in this case, I conclude that former RCW 71.05.320(3)(c)(ii) is unconstitutionally vague because it vests virtually unlimited discretion in a reviewing court to determine whether an individual has provided sufficient “proof” to rebut the State’s “prima facie evidence” that civil commitment should continue for another six months without a full evidentiary hearing. And I agree with *672the majority that former RCW 71.05.320(3)(c)(ii) raises significant procedural due process concerns as written. But I would not save the statute by rewriting it. That is not the role of this court.
Stephens, J., concurs with Gordon McCloud, J.Majority at 655, 662 (quoting former RCW 71.05.320(3)(c)(ii)).
Former RCW 71.05.320(3)(c)(ii); see majority at 655-56, 662.
Former RCW 71.05.320(3)(c)(ii).
Majority at 658.
Former RCW 71.05.320(3)(c)(ii); see majority at 657-58, 662.
Majority at 658.
Majority at 658-59.
Note that while none of the individuals subject to former RCW 71.05-,320(3)(c)(ii) have been convicted of a crime beyond a reasonable doubt, all have been found by clear, cogent, and convincing evidence to have committed acts constituting a violent felony, a fact that distinguishes them from other civilly committed individuals. Former RCW 71.05.320(3)(c)(ii); RCW 71.05.280(3)(b); RCW 10.77.086(4).