¶73 (dissenting) — If, at an annual show cause hearing, a person committed as a sexually violent predator (SVP) makes a prima facie case that probable cause exists to warrant a hearing on whether he continues to meet the definition of an SVP,20 he is entitled to a new commitment hearing. RCW 71.09.090(2)(a); In re Det. of Petersen, 145 Wn.2d 789, 798-99, 42 P.3d 952 (2002). But our legislature has amended RCW 71.09.090 to restrict the type of evidence a person committed as an SVP can use to make this prima facie case, providing that a change in a demographic factor such as age does not by itself establish probable cause that a person’s condition has changed. Laws of 2005, ch. 344, § 2; RCW 71.09.090(4)(c).
Armstrong, J.¶74 The majority holds that this amendment to RCW 71.09.090 is constitutional because it clarifies the standard for ordering a probable cause hearing and does not prevent an SVP from showing that because of either his treatment or some other factor, he is no longer dangerous.
¶75 Freedom from bodily restraint is at the core of the liberty that the due process clause protects from arbitrary *407governmental action. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). Involuntary civil commitment is constitutional only if the State shows hy clear and convincing evidence that a person both suffers from mental illness and is dangerous. Foucha, 504 U.S. at 75-76 (citing Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)). Like any other kind of civil commitment, commitment of SVPs is constitutional only because, by requiring proof of dangerousness and an additional element such as mental illness, the statute limits confinement to those who suffer from an impairment rendering them dangerous beyond their control. In re Det. of Thorell, 149 Wn.2d 724, 731-32, 72 P.3d 708 (2003).
¶76 But involuntary civil commitment of a mentally ill person who is not dangerous is unconstitutional. Foucha, 504 U.S. at 77 (citing O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975)). A necessary corollary is that even where an initial commitment was constitutional, the government may not continue confinement where the basis for commitment, whether mental illness or dangerousness, no longer exists. Foucha, 504 U.S. at 77-78. Thus, where a person committed as an SVP is no longer likely to engage in predatory acts of sexual violence, the justification for his confinement no longer exists and further detention is unconstitutional. As Division One noted in one of the cases that prompted the RCW 71.09.090 amendment, “ ‘[c]urrent dangerousness is a bedrock principle underlying the [SVP] commitment statute.’ ” In re Det. of Ward, 125 Wn. App. 381, 386, 104 P.3d 747 (quoting In re Det. of Paschke, 121 Wn. App. 614, 622, 90 P.3d 74 (2004)), review denied, 155 Wn.2d 1025 (2005).
¶77 RCW 71.09.090 prevents an SVP from using certain evidence to make a prima facie case that he is no longer dangerous. For example, as an SVP ages, he may lose the ability or interest to act out violent sexual urges even if he has not suffered paralysis, stroke, dementia, or a similar debilitating condition as contemplated by RCW 71.09.090-(4)(b)(i). Yet amended RCW 71.09.090 does not allow the *408SVP to use advanced age as a possible grounds for a full hearing. And this is so even if all mental health professionals would agree that in a particular case, the SVP’s age alone makes it highly unlikely he will commit sexually violent acts. Under such circumstances, the State would no longer be holding the defendant because of his dangerousness but because it has blocked his access to a hearing on whether he is still dangerous. Where the State creates legal grounds to hold an SVP unrelated to his actual dangerousness, it violates due process. Accordingly, by preventing a committed SVP from potentially showing that his confinement is no longer justified, the State violates his constitutional rights.
¶78 The majority also notes that Dr. Wollert,21 petitioners’ expert, did not correlate his data with the petitioners’ specific conditions. But in determining whether the petitioner has made a prima facie case that probable cause exists to warrant a new commitment hearing, the trial court determines only whether the petitioner has alleged facts that, if believed, warrant further proceedings. Petersen, 145 Wn.2d at 797-98. The trial court must not weigh the evidence at the show cause hearing. Petersen, 145 Wn.2d at 798, 803. The majority may be correct that Fox’s advanced age at the time of his initial SVP commitment makes less credible Dr. Wollert’s opinion that Fox no longer meets the definition of an SVP. But the trial court does not determine a proposed witness’s credibility at the probable cause hearing; rather, this question is for the jury at a full hearing.
¶79 I would reverse and remand these cases for full hearings on whether the defendants are dangerous because they are likely to commit sexually violent crimes.
Review granted and case remanded to the Court of Appeals at 162 Wn.2d 1019 (2008).
An SVP is a “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.” RCW 71.09.020(16).
The legislature is clearly concerned about Dr. Wollert’s proposed testimony. The concern can be addressed by measuring Dr. Wollert’s testimony against the Frye standard for admissibility of expert testimony, rather than a statutory amendment. See State v. Cauthron, 120 Wn.2d 879, 886-87, 846 P.2d 502 (1993) (citing Frye v. United, States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923)).