¶55 (dissenting) — This case presents a facial challenge to the 2005 amendments to the annual review process under Washington’s sexually violent predator (SVP) statute, chapter 71.09 RCW. The majority holds that David McCuistion is not entitled to an evidentiary hearing under RCW 71.09.090 regardless of the constitutionality of the 2005 amendments because he failed to establish probable cause to believe his condition had “so changed” that he is no longer an SVP. Though unnecessary to its holding, the majority further opines that the 2005 amendments satisfy substantive due process because they do not eliminate the State’s burden to establish a prima facie case justifying continued commitment. Finally, deferring to legislative “findings” concerning what evidence is relevant to decide if a committed person remains mentally ill and dangerous, the majority concludes the amended statute satisfies procedural due process.
¶56 I dissent because I believe the majority’s analysis reasons away the very constitutional question we are obligated to answer. We cannot defer to legislative views on judicial facts. The 2005 amendments impermissibly truncate a court’s consideration of relevant evidence at a show cause hearing under the SVP statute and thereby violate *400substantive due process. I would hold the amendments are facially invalid. Whether McCuistion can show his condition has so changed to require a full evidentiary hearing under the pre-2005 statute is a question that was not asked or answered below. Accordingly, I would reverse and remand for a show cause hearing under the prior version of RCW 71.09.090.
DISCUSSION
¶57 The SVP statute provides for the civil commitment of an individual who has been convicted of a crime of sexual violence and who suffers from a mental abnormality making him likely to reoffend. The legislature intended the SVP law to increase public safety in two ways: by incapacitating dangerous offenders and by treating them to eliminate the danger. RCW 71.09.010; In re Pers. Restraint of Young, 122 Wn.2d 1, 10, 857 P.2d 989 (1993). Since 1990, when the civil commitment scheme was first created, we have consistently upheld the legislature’s approach to the difficult problem of recidivism among SVPs. See Young, 122 Wn.2d at 26 (“[TJhere are no substantive constitutional impediments to the sexually violent predator scheme.”).
¶58 At the same time, we have recognized that because the SVP statute contemplates indefinite civil commitment, it presents substantive due process concerns.8 Id. at 25-42 (exploring several aspects of due process). Civil commitment impairs an individual’s fundamental right to liberty and so is subject to strict scrutiny. Id. at 26. Strict scrutiny *401requires that any deprivation of a fundamental right be narrowly tailored to the State’s compelling interests. Id. The United States Supreme Court and this court have held that the State has a compelling interest in civilly committing only those who are both mentally ill and dangerous to themselves or others. Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992); Young, 122 Wn.2d at 27. At the initial commitment proceeding, the SVP statute satisfies strict scrutiny by requiring the State to prove beyond a reasonable doubt that the individual suffers from a mental disorder and is dangerous. Young, 122 Wn.2d at 27-33.
¶59 Because commitment for SVPs is indefinite in nature, the due process requirement that an SVP be mentally ill and dangerous is ongoing. Foucha, 504 U.S. at 77 (“[T]he acquittee may be held as long as he is both mentally ill and dangerous, but no longer.”); accord O’Connor v. Donaldson, 422 U.S. 563, 574-76, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). This is true because a law allowing the detention of individuals who are no longer mentally ill or dangerous would not be narrowly tailored to the State’s compelling interests.
¶60 We have therefore attached constitutional significance to the SVP statute’s annual review process, whereby the State must show that the SVP continues to meet the standard for commitment. Young, 122 Wn.2d at 39; see also In re Det. of Ambers, 160 Wn.2d 543, 553 n.4, 559 n.7, 158 P.3d 1144 (2007) (noting the constitutional implications of annual reviews); In re Det. of Elmore, 162 Wn.2d 27, 36 n.8, 168 P.3d 1285 (2007) (same); In re Det. of Petersen, 145 Wn.2d 789, 795-96, 42 P.3d 952 (2002) (attaching constitutional significance to the burden of proof in annual reviews). In Young, we recognized that meaningful annual review is central to the SVP statute’s constitutionality. We held that SVP commitment is narrowly tailored in part because it is “not subject to any rigid time limit,” but rather is “tailored to the nature and duration of the mental illness,” and because “the Statute’s release provisions pro*402vide the opportunity for periodic review of the committed individual’s current mental condition and continuing dangerousness to the community.” Young, 122 Wn.2d at 39.
¶61 Each year the State must evaluate committed individuals to determine if they continue to meet the definition of an SVP. RCW 71.09.070. If the State determines that an individual is no longer mentally ill or dangerous, the State authorizes the detainee to petition for release or transfer to a less restrictive, alternative confinement. RCW 71.09.090(1). Importantly, this is not the only way a detained person may seek release or transfer; an SVP may also petition the court without the State’s authorization and obtain a show cause hearing. RCW 71.09.090(2). At this hearing, the State must present prima facie evidence that the petitioner still meets the SVP definition. RCW 71.09.090(2)(b). Then, if the committed person produces evidence establishing probable cause to believe that he has “so changed” as to no longer meet the definition of an SVP, he is entitled to a full hearing. RCW 71.09.090(2)(c)(ii). He makes this showing by presenting prima facie evidence to support the finding that he no longer meets the SVP definition, with the ultimate burden remaining on the State. Petersen, 145 Wn.2d at 796, 798-99; Elmore, 162 Wn.2d at 36-37. At the full hearing, which may be a jury trial, the State must prove beyond a reasonable doubt that the committed person is mentally ill and dangerous. RCW 71.09.090(3).
¶62 In Young, we approved of a prior version of the SVP statute’s annual review provision, finding that it satisfied substantive due process mínimums. 122 Wn.2d at 39; former RCW 71.09.090 (1992). In 2005, the legislature amended the provision in response to a pair of Court of Appeals cases suggesting that demographic or scientific changes, such as a committed person’s increase in age or new diagnostic procedures, could create a prima facie case that an individual had “so changed” that he no longer met *403the definition of an SVP.9 In re Det. of Young, 120 Wn. App. 753, 761-62, 86 P.3d 810 (2004) (age); In re Det. of Ward, 125 Wn. App. 381, 383, 104 P.3d 747 (2005) (diagnostic procedures); see also Ambers, 160 Wn.2d at 549-50 (describing these cases as the impetus behind the 2005 amendments). The 2005 amendments clarified the legislature’s intent that the phrase “so changed” refers specifically to physiological and treatment-based changes, not changes of the types recognized by the Court of Appeals:
(4)(a) Probable cause exists to believe that a person’s condition has “so changed,” . . . only when evidence exists, since the person’s last commitment trial ... of a substantial change in the person’s physical or mental condition such that the person ... no longer meets the definition of a sexually violent predator ....
(b) A new trial proceeding under subsection (3) of this section may be ordered, or a trial proceeding may be held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person’s last commitment trial proceeding:
(i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
(ii) A change in the person’s mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
(c) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause *404for a new trial proceeding under subsection (3) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
RCW 71.09.090; Laws of 2005, ch. 344, §§ 1-2 (expressing the intent behind the addition of subsection .090(4) to the statute). Thus, the 2005 amendments altered the standard for the evidence a detainee must present to obtain a full hearing during the annual review process and effectively narrowed the universe of facts relevant to this standard.
f 63 In Ambers, we heard a constitutional challenge to the amendments based on the State’s position that the phrase “safe to be at large” in RCW 71.09.090(4)(b)(ii) heightened the SVP’s burden for obtaining a new trial, so that changes must be treatment based to entitle the SVP to a new trial. Ambers, 160 Wn.2d at 553, 558. In dictum, we opined that because of the State’s continuing due process obligation to confine only dangerous persons, it “might be unconstitutional” to “require [ ] a more stringent standard at an annual review hearing than is required for initial commitment.” Id. at 553 n.4 (citing O’Connor, 422 U.S. at 574-75). However, we did not directly address the issue because we interpreted “safe to be at large” to be equivalent to the pre-2005 standard and determined that Ambers’ change was in fact treatment based. Id. at 557, 559 n.7.
¶64 In Elmore, we had to decide whether the 2005 amendments applied retroactively, which would have prevented Elmore’s new commitment hearing based solely on his change in age. Elmore, 162 Wn.2d at 32-33, 35. We again avoided the issue of whether the 2005 amendments were constitutionally valid by interpreting them not to apply retroactively. Id. at 36 & n.8; see also In re Det. of Smith, 163 Wn.2d 699, 700-01, 184 P.3d 1261 (2008) (reversing per curiam on facts indistinguishable from Elmore).
¶65 Both Ambers and Elmore foreshadowed the constitutional infirmity of the 2005 amendments to the extent they might operate to impose greater restrictions on the *405evidence a detainee can present to show he no longer meets the commitment standard. Indeed, we avoided the substantive due process problem only by refusing to apply the statute in the way the State advocates here. See Ambers, 160 Wn.2d at 558 (instead asking “only whether Ambers sufficiently demonstrated a change in his condition such that he no longer meets the definition of an SVP”); accord Elmore, 162 Wn.2d at 38-39. When applied to limit relevant evidence of change, the 2005 amendments undermine meaningful annual review of SVP status in precisely the way that gave us concern in Ambers and Elmore.
¶66 The majority refuses to grapple with our precedent, preferring to rely on inapplicable standards for reviewing evidence posttrial or for applying collateral estoppel. Majority at 384-85 (citing Burke v. Pepsi-Cola Bottling Co. of Yakima, 64 Wn.2d 244, 246, 391 P.2d 194 (1964); City of Aberdeen v. Regan, 170 Wn.2d 103, 108, 239 P.3d 1102 (2010)). The majority mentions Elmore only in a footnote and does not even acknowledge Ambers. Reading the majority, one would suppose our decision in Young found no constitutional significance in the details of the annual review process, so long as there was one. See id. at 385-86. Moreover, it would appear that the serious concern we expressed about the 2005 amendments in Ambers and Elmore was only so much hand wringing because it is enough that the State’s evaluators may recommend release or transfer annually. See id. at 387-89. In short, by refusing to acknowledge the effect of the 2005 amendments on meaningful annual review, the majority reasons away any constitutional issue.10
*406¶67 Contrasting the initial commitment proceeding with the annual review proceeding reveals how the 2005 amendments have unconstitutionally eroded the substantive due process protections for civil commitment. At the initial commitment proceeding, the State must prove beyond a reasonable doubt that the person to be committed is an SVP. RCW 71.09.060(1). Specifically, the State must prove that the person, inter alia, suffers from a mental abnormality or personality disorder and is likely to engage in predatory acts of sexual violence if not confined in a secure facility. RCW 71.09.020(18). If the alleged SVP can show that there is reasonable doubt as to one of these criteria, the State fails to meet its burden and the person may not be involuntarily committed. RCW 71.09.060(1).
¶68 At the annual review, the State must make a prima facie showing that the committed individual still meets the definition of an SVP, which includes a showing that he is still dangerous. The pre-2005 statute allowed the SVP to counter this showing on any number of grounds relevant to the determination of SVP status. If the committed individual produced prima facie evidence showing, for any reason, that he was not an SVP, he was entitled to a jury trial at which the State would have to prove his continued SVP status beyond a reasonable doubt. Former RCW 71.09.090 (2001). (One such reason might have been that the committed individual no longer had a high risk of recidivism.) But under the 2005 amendments to RCW 71.09.090, the SVP may counter the State’s showing on only two grounds: a permanent physiological change or a treat*407ment-based mental change. Once the State offers prima facie evidence that the individual is still an SVP, the court has no authority to order a full hearing absent evidence supporting one of these grounds. See RCW 71.09.090(4)(b). Furthermore, the SVP may not obtain a full hearing by showing a change in a single demographic factor, even if this change would alter the outcome of an SVP determination under the multifactor analysis that previously justified SVP commitment.11 RCW 71.09.090(4)(c).
¶69 The flaw in the 2005 amendments is that they separate the annual review inquiry from the ultimate constitutional standard under Foucha, 504 U.S. at 77. The SVP statute upheld in Young was narrowly tailored to allow the detention only of currently mentally ill and dangerous individuals. 122 Wn.2d at 39. By altering the annual review standard, the 2005 amendments authorize the State to detain individuals who are no longer mentally ill and dangerous. There are a multitude of ways in which a person might potentially cease to meet the definition of an SVP and, thus, cease to be detainable under the due process standard. Yet, only two of those ways are cognizable under the 2005 amendments to the annual review provisions. By artificially limiting the type of information that is relevant to continued SVP commitment, the 2005 amendments allow the detention of someone who is no longer mentally ill or *408dangerous and therefore disrupt the narrow tailoring present in the preamendment SVP law.
¶[70 The majority defers to the legislature’s determination that SVPs’ conditions are such that they do not abate without treatment or due to advancing age alone. Majority at 389-94. The legislature is certainly entitled to make reasonable generalizations from the available data. However, given the constitutionally protected interests at issue, the SVP statute must survive strict scrutiny. Young, 122 Wn.2d at 26-27. Applying this test, we do not defer to legislative pronouncements as we would under rational-basis review. It is simply not true under the SVP scheme that the only factors relevant to a person’s current mental illness or dangerousness are permanent physiological changes or treatment-based psychological changes. The legislature has adopted a scheme that makes other evidence relevant; it cannot by legislative fiat declare that same evidence irrelevant at an annual review. Nor can it justify detaining individuals who are no longer dangerous because of its (admittedly) compelling interest in treating SVPs. See Foucha, 504 U.S. at 77 (holding that the State’s compelling interest in detaining and treating the mentally ill is insufficient to permit the detention of mentally ill, but nondangerous, individuals).
¶71 The majority credits the State’s argument that due process can be satisfied through a committed person’s other avenues for relief, such as a personal restraint petition (PRP). This argument proves too much. If the 2005 amendments can be saved because an unconstitutionally detained person may file a PRP seeking relief, then any annual review provision, no matter how alienated from the requirements of substantive due process, would be beyond scrutiny. After all, an individual can always file a PRP to seek to prove his restraint is unlawful. See RAP 16.4. The inquiry must focus on the annual review procedure itself. Due process requires that this procedure be narrowly tailored to meet the State’s interests, which means confining only *409those individuals who continue to be both mentally ill and dangerous. Because the SVP law, as amended, is not narrowly tailored to the State’s compelling interests, I would strike down the 2005 amendments as violative of substantive due process protections.
¶72 Because of the amendments’ severability clause, Laws of 2005, ch. 344, § 3, we should remand for the lower court to consider McCuistion’s petition under the pre-2005 show cause standard — that is, RCW 71.09.090 without subsection .090(4). The relevant provision, RCW 71.09.090(2)(c), reads:
If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator ... or (ii) probable cause exists to believe that the person’s condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator . . ., then the court shall set a hearing on either or both issues.
Without subsection .090(4)’s elaboration upon the phrase “so changed,” this provision allows for the full range of relevant evidence to prove that a committed person no longer meets the definition of an SVP. The evidence need not pertain to a permanent physiological or treatment-based change.12
¶73 Ironically, the actual holding in the majority opinion is that Mr. McCuistion failed to demonstrate probable cause under the pre-2005 version of RCW 71.09.090. See majority at 374, 398 (“We hold that Mr. McCuistion had neither a statutory nor a constitutional right to an evidentiary hear*410ing because he did not present prima facie evidence that his condition had changed such that he no longer met the criteria for confinement.”); id. at 382 (noting that even if the 2005 amendments are set aside, “we would still conclude that the trial court correctly denied [Mr. McCuistion’s] request for an evidentiary hearing”). However, whether probable cause exists under the prior statute is a question for the trial court, applying the proper standards. We should leave the show cause hearing to the trial court.13
¶74 I would hold that the 2005 amendments to RCW 71.09.090 violate substantive due process and are invalid. Rather than applying the prior version of the statute for the first time on appeal, I would reverse and remand for a new show cause hearing under the pre-2005 standard. Accordingly, I respectfully dissent.
Chambers, J., and Alexander, J. Pro Tem., concur with Stephens, J.Reconsideration denied August 17, 2012.
The majority separately addresses substantive and procedural due process, but this case is not about procedural due process. The “procedure” required under a constitutionally valid SVP statute reflects substantive limits on the power of the legislature to restrict an individual’s fundamental rights. As our opinion in Young makes clear, the question is not what procedures are required under a balance of competing interests, but rather whether the procedures set forth in the statute are narrowly tailored to meet the State’s compelling interest in continuing to confine mentally ill and dangerous persons. Young, 122 Wn.2d at 25-42. This is and always has been a question of substantive due process. Id. at 27; Foucha v. Louisiana, 504 U.S. 71, 80-83, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992).
Demographic changes are relevant because experts in SVP cases predict an individual’s dangerousness using actuarial tables. See In re Det. of Thorell, 149 Wn.2d 724, 758, 72 P.3d 708 (2003) (permitting actuarial evidence). Some experts opine that older offenders are statistically less likely to reoffend. See In re Det. of Young, 120 Wn. App. 753, 760-61, 86 P.3d 810 (2004) (describing such an opinion). We recognized in Elmore that increasing age may support a probable cause finding. Elmore, 162 Wn.2d at 38.
The majority apparently finds substantive due process satisfied by the statutory requirement that the State present a prima facie case for continued confinement. Majority at 388-89. It notes that a person who no longer meets the definition of an SVP would be subject to release even under RCW 71.09.090(4)’s restrictive standard. The problem remains that the 2005 amendments artificially restrict the evidence allowed to rebut the State’s case. Under the majority’s analysis, there would be no substantive due process concern even if the statute provided that the only evidence the SVP could offer was an opinion from the State’s evaluators. But the statute authorizes a show cause hearing upon the *406SVP’s own petition, regardless of whether the State believes the person has ceased to be an SVP. See RCW 71.09.090(2)(a) (providing for the right to petition the court without the secretary’s approval). Moreover, at the show cause hearing, it is not the SVP’s burden to convince the State’s evaluators (or the court) that he is no longer subject to commitment. RCW 71.09.090(2)(c) (requiring only probable cause at the show cause hearing). Indeed, the court does not weigh the evidence at the show cause hearing. Elmore, 162 Wn.2d at 37; Petersen, 145 Wn.2d at 803. Rather, if the SVP makes a prima facie showing that he no longer meets the definition of an SVP, he is entitled to a full trial by a jury . RCW 71.09.090(3)(a). The majority’s view disregards the importance of the detainee’s opportunity to make a showing so long as the State makes one.
Predictions of future dangerousness often rely on multifactor actuarial analyses. Thorell, 149 Wn.2d at 753. Statistical importance attaches to each factor; that is why each one appears in the actuarial model. See id. Thus, a change in a single factor may lower the risk prediction so that it no longer suggests that the individual is an SVP.
The system set up by the legislature in the 2005 amendments allows the State to prove an individual’s dangerousness using actuarial tables at the initial SVP commitment hearing. But at an annual review, when the same type of table predicts that the offender is no longer dangerous (e.g., because of his increase in age, change in marital status, or other demographic factor), the prediction is excluded as “irrelevant.” The only “relevant” predictors allowed are physiological or treatment-based changes. As discussed above, however, evidence that the offender is no longer currently dangerous — evidence that the legislature approves of as credible and scientific when it is used by the State to commit SVPs initially — is necessarily relevant to whether the State may continue to detain someone. See Foucha, 504 U.S. at 77.
Of course, the evidence must be otherwise admissible. The concern that a single doctor, without ever examining the SVP in question, can offer an opinion supporting release is overblown. Expert opinions remain subject to challenge for admissibility under the rules of evidence and Frye. See generally ER 702-703 (regulating opinion testimony by experts); Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) (barring new scientific evidence unless it is generally accepted in the field). Furthermore, the most the doctor’s testimony can do in this situation is convince a judge to allow a jury to decide whether the committed individual remains an SVP.
Not only does the majority assume the trial court’s role by conducting a show cause hearing, it improperly weighs the evidence. For example, the majority dismisses Dr. Coleman’s declaration as “nothing more than a collateral attack on the original finding that Mr. McCuistion was an SVP,” majority at 382, despite the fact that the declaration relies on facts postdating the commitment trial. See Clerk’s Papers at 616-24 (Decl. of Lee Coleman, MD). We were not so dismissive of a similar declaration in Elmore, observing that “[t]he fact that Dr. Wollert previously opined that Elmore was not sexually sadistic is inapposite.” 162 Wn.2d at 38. Despite the majority’s protestations to the contrary, characterizing a declaration as “nothing more” them one of its conclusions does involve weighing of the evidence. My criticism of the majority should not be read to suggest I would find probable cause requiring a full evidentiary hearing. That is the issue for the trial judge.