IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of
A.J.C., No. 84865-8-I
Appellant. DIVISION ONE
UNPUBLISHED OPINION
COBURN, J. — A.J.C. challenges an order detaining him for 180 days of
treatment under the involuntary treatment act (ITA), chapter 71.05 RCW. He
argues that the trial court erred by proceeding with a bench trial without obtaining
a valid waiver of his right to a jury trial. Because A.J.C. raises this argument for
the first time on appeal and fails to demonstrate manifest constitutional error, we
affirm.
FACTS
On August 10, 2022, A.J.C. was taken into emergency custody after
sheriff’s deputies found him trespassing in his neighbor’s yard wearing only a
construction vest and boots. He was hospitalized and evaluated at Fairfax
Hospital, which later petitioned to detain him for 14 days of involuntary treatment.
After a hearing, the trial court entered a 14-day commitment order based on a
finding that A.J.C. was gravely disabled under former RCW 71.05.020(24)(b)
Citations and pin cites are based on the Westlaw online version of the cited material.
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(2022) in that he “show[ed] severe deterioration in routine functioning, evidenced
by repeated [and] escalating loss of cognitive and volitional control over his
actions such that, outside the hospital setting, he would not receive care that is
essential to his health and safety.” In announcing its decision, the trial court
advised A.J.C. that if Fairfax felt he was not making progress in treatment, it
could petition the court “and ask for 90 days . . . or 180 days thereafter,” and if
Fairfax did that, A.J.C. would “have the right to have another hearing or trial,
and . . . could even let a jury make that decision rather than a . . . judicial officer.”
On August 26, Fairfax petitioned to detain A.J.C. for 90 days of involuntary
treatment. On September 7, the trial court entered an agreed, less restrictive
alternative (LRA) order remanding A.J.C. to 90 days of behavioral health
treatment. The LRA order states, “If involuntary treatment beyond . . . the ninety
days of less restrictive treatment is to be sought, respondent will have the right to
a full hearing or jury trial as required by RCW 71.05.310.” It also states,
“Pursuant to an oral presence waiver, defense counsel provided Respondent
with notice of the right to full hearing or jury trial.”
King County designated crisis responders later petitioned to revoke the
LRA. On November 29, the trial court granted the petition after a hearing, finding
that A.J.C. had violated the LRA’s terms and ordering that he be committed for
inpatient treatment. Meanwhile, A.J.C. was readmitted to Fairfax.
In December 2022, Fairfax petitioned to detain A.J.C. for an additional 180
days of involuntary treatment. No jury trial demand appears of record, and a
bench trial began on December 12 with A.J.C. present by video. The trial court
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found by clear, cogent, and convincing evidence that A.J.C. continued to be
gravely disabled and that an LRA was not in the best interest of A.J.C. and
others. It ordered A.J.C. detained for 180 days of inpatient treatment. A.J.C.
appeals.
DISCUSSION
A.J.C. contends that reversal is required because he did not validly waive
his right to a jury trial before the court proceeded with a bench trial on Fairfax’s
180-day involuntary treatment petition. He acknowledges that he is raising this
argument for the first time on appeal but asserts it “is properly raised as manifest
constitutional error under RAP 2.5(a)(3).” We disagree.
Under RAP 2.5(a), we “may refuse to review any claim of error which was
not raised in the trial court.” A party may raise a claimed error for the first time on
appeal if it is a manifest error affecting a constitutional right, RAP 2.5(a)(3), but
the error must be “truly of constitutional dimension.” State v. Kirkman, 159
Wn.2d 918, 926, 155 P.3d 125 (2007). “To determine whether an error is truly of
constitutional dimension, appellate courts first look to the asserted claim and
assess whether, if the claim is correct, it implicates a constitutional interest as
compared to another form of trial error.” State v. Grimes, 165 Wn. App. 172,
186, 267 P.3d 454 (2011).
A.J.C.’s claim that he did not validly waive his right to a jury trial is
premised on his assertion that article 1, section 21 of the Washington State
Constitution guarantees the right to a jury trial in a 180-day involuntary
commitment proceeding. “To determine whether [a jury trial] right exists for a
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particular case, Washington courts use a two-step analysis.” In re Det. of M.S.,
18 Wn. App. 2d 651, 657, 492 P.3d 882 (2021). “First, the court identifies the
scope of the right to a jury trial in 1889.” Id. “Second, the court decides whether
‘the type of action at issue is similar to one that would include the right to a jury
trial at that time.’” Id. (quoting In re Det. of M.W., 185 Wn.2d 633, 662, 374 P.3d
1123 (2016)). “‘The right is the historical right enjoyed at the time it was
guaranteed by the Constitution.’” Id. (internal quotation marks omitted) (quoting
In re Det. of S.E., 199 Wn. App. 609, 615, 400 P.3d 1271 (2017)).
As we explained in M.S., the Code of 1881, which was in effect when the
state constitution was adopted, provided an individual the right to demand a jury
trial “in a case to decide whether [the individual] could be committed indefinitely
to a ‘hospital for the insane.’” Id. (emphasis added) (quoting S.E., 199 Wn. App.
at 616 n.5); see also CODE OF 1881, ch. CX, § 1632. Thus, “at the time
Washington adopted its constitution, a constitutional right to a jury trial only
attached to a case involving the State’s request for indefinite detention.” Id. at
657-58 (emphasis added).
As we also explained in M.S., “a proceeding to decide if a person should
be involuntarily committed for 180 days is not similar to the 1889 commitment
proceeding that included a right to a jury trial.” Id. at 658. We reasoned that
“[the] civil commitment process is distinguishable from indefinite
civil commitment schemes that require jury trials on initial
commitment because the ITA involves only short periods of
commitment and requires the State to file a new petition and carry a
high burden of recommitment at the expiration of each period (here,
every 180 days).”
Id. (alteration in original) (quoting M.W., 185 Wn.2d at 663). We found instructive
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our earlier opinion in In re Detention of C.B., where we held for the same reasons
that the state constitution did not provide a jury trial right for 90-day involuntary
commitment proceedings under the ITA. M.S., 18 Wn. App. 2d at 658 (citing
C.B., 9 Wn. App. 2d 179, 185, 443 P.3d 811 (2019)).
We adhere to our reasoning in M.S. and C.B. and hold that because the
Washington State Constitution does not guarantee a right to a jury trial for 180-
day involuntary commitment proceedings, A.J.C.’s claim that he did not validly
waive that right does not implicate a constitutional interest. Accordingly, we do
not reach that claim for the first time on appeal. 1
A.J.C. argues that M.S. and C.B. were incorrectly decided. He relies on In
re Ellern, 23 Wn.2d 219, 160 P.2d 639 (1945), Quesnell v. State, 83 Wn.2d 224,
517 P.2d 568 (1973), Sherwin v. Arveson, 96 Wn.2d 77, 633 P.2d 1335 (1981),
and State v. Walker, 13 Wn. App. 545, 536 P.2d 657 (1975), to assert that the
state constitution preserved the right to a trial by jury “in mental illness
proceedings.” But none of these cases held that a 180-day civil commitment
proceeding under the ITA is similar to the types of mental illness proceedings for
which a jury trial existed at the time of our state constitution’s adoption. 2 To the
1
Because we do not reach the merits, we need not and do not decide what a
valid waiver would have required. Cf. M.S., 18 Wn. App. 2d at 659 n.1 (declining to
decide whether the criminal standard for jury trial waivers applies to civil commitment
proceedings under the ITA); but see C.B., 9 Wn. App. 2d at 184-85 (holding that “no
state constitutional jury right exists for a 90-day commitment under the ITA” and holding
further that even if such a right existed, the respondent “must demand it or it is waived”).
2
See Ellern, 23 Wn.2d at 223 (observing that § 1632 of the Code of 1881,
regarding indefinite commitment, recognized a respondent’s right to demand a jury);
Quesnell, 83 Wn.2d at 242 & n.23 (holding that guardian ad litem could not waive a
detainee’s right to a jury trial after the detainee had asserted it through private counsel
and stating that “[o]ur ruling in this case is limited strictly to the single issue involved”);
Sherwin, 96 Wn.2d at 84 (holding that there is no constitutional right to have a civil
commitment proceeding conducted in the county of one’s residence); Walker, 13 Wn.
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contrary, our Supreme Court noted in M.W. that it had “never affirmatively
recognized the right to a jury trial” in an ITA proceeding and that the civil
commitment process under the ITA is “distinguishable” from the indefinite civil
commitment schemes discussed in historical cases like Ellern, Quesnell, and
Sherwin. M.W., 185 Wn.2d at 663.
To this end, A.J.C. argues that M.W. is “materially distinguishable”
because it involved an ITA provision requiring certain individuals to meet a
threshold burden of production before proceeding to a full evidentiary
commitment hearing. See id., 185 Wn.2d at 664. A.J.C. also points out,
correctly, that the M.W. court assumed without deciding that a jury trial right
exists in that context. See id. at 664 (“[E]ven assuming an individual subject to
[the ITA provision at issue] has a right to a jury in recommitment proceedings, the
statute meets constitutional standards.”). But like the instant case, M.W. involved
an asserted constitutional right to a jury trial in an ITA proceeding. Although the
M.W. court ultimately did not decide whether such a right exists, its language
distinguishing ITA proceedings from historical commitment proceedings is
persuasive in determining whether A.J.C. has carried his burden to show that his
claimed error is truly of constitutional dimension. See Grimes, 165 Wn. App. at
185-86 (party urging review of issue raised for the first time on appeal bears
burden of demonstrating manifest constitutional error).
Finally, A.J.C. points out that our Supreme Court recently referred to the
civil commitment scheme as it existed in 1928 as “an earlier version of the ITA.”
App. at 556 (holding that the constitution does not guarantee a criminal defendant the
right to have a jury determine the defendant’s competence to stand trial).
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In re Det. of A.C., No. 100668-3, slip op. at 8-9 (Wash. July 27, 2023)
https://www.courts.wa.gov/opinions/pdf/1006683.pdf (citing In re Welfare of
Eastman, 151 Wash. 321, 322, 275 P. 724 (1929)). But the A.C. court did so in
confirming that the ITA is strictly construed, see id. at 86; A.C. did not involve an
asserted jury trial right. We are not persuaded by A.J.C.’s contention that A.C.
“confirm[ed that] a proceeding to involuntarily commit a person for 180 days of
mental health treatment is plainly analogous to proceedings in 1889 to commit
persons for mental illness or ‘insanity.’”
We affirm.
WE CONCUR:
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In Re The Detention Of A.j.c.
Combined Opinion