Find Legal Information

Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                )
                                                    )      No. 81644-1
                      Respondent,                   )
                                                    )
       v.                                           )      En Banc
                                                    )
DAVID W. MCCUISTION,                                )
                                                    )
                      Petitioner.                   )      Filed May 3, 2012
______________________________________)

       MADSEN, C.J. -- Three years after he was civilly committed as a sexually violent 

predator (SVP), David McCuistion sought an evidentiary hearing pursuant to RCW 

71.09.090(2).  In support of his petition for release, Mr. McCuistion submitted a 

declaration from an expert stating that he had never qualified as a sexually violent 

predator.  The trial court denied an evidentiary hearing to determine his eligibility for 

unconditional discharge or conditional release to a less restrictive alternative, and the 

Court of Appeals denied Mr. McCuistion's motion for discretionary review.  Mr. 

McCuistion claims he was entitled to an evidentiary hearing on the basis of the evidence 

he presented.  He further contends that the 2005 amendments to RCW 71.09.090 -- which  

No. 81644-1

allow for an evidentiary hearing only upon a showing of physiological change or a 

change in condition resulting from treatment -- violate substantive due process and the 

separation of powers doctrine. 

       We hold that Mr. McCuistion had neither a statutory nor a constitutional right to 

an evidentiary hearing because he did not present prima facie evidence that his condition 

had changed such that he no longer met the criteria for confinement.  In addition, we hold 

that the challenged amendments do not violate procedural and substantive due process.  

Finally, we conclude that the 2005 amendments do not violate separation of powers 

principles.  

                         FACTS AND PROCEDURAL HISTORY

       Between 1980 and 1993, David McCuistion was convicted of a number of sex-

related offenses, including attempted indecent liberties, third degree rape, phone 

harassment, and second and third degree assault.  On October 3, 2003, following an SVP 

commitment trial, Mr. McCuistion was found to have satisfied the criteria for 

commitment as a SVP and was committed indefinitely to the care and custody of the 
Department of Social and Health Services (DSHS).1  He appealed the commitment order 

unsuccessfully.  

       Pursuant to Mr. McCuistion's petition under RCW 71.09.090(2), the trial court 

held a show cause hearing on October 27, 2006 to determine whether Mr. McCuistion 

1 In October 1998, while Mr. McCuistion was still incarcerated, the State petitioned to commit 
him to the special commitment center.  The trial court found probable cause for commitment and 
entered a commitment order. Due to various delays, he was not found to be a sexually violent 
predator and indefinitely committed as such until October 2003.  
                                               2 

No. 81644-1

was entitled to a full evidentiary hearing concerning his eligibility for unconditional 

release or conditional release to a less restrictive alternative.  The State submitted written 

annual reviews produced by DSHS in 2004 and 2005, each of which recommended 

continued commitment.  In the 2005 annual review, Dr. Carla van Dam, PhD, indicated 

that Mr. McCuistion had scored highly on several risk assessment instruments; had a 

history of behavioral infractions; had failed to participate in substance abuse or sex 

offender treatment; and met diagnostic criteria for a number of psychiatric conditions, 

including pedophilia, paraphilia not otherwise specified, and antisocial personality 

disorder.  She concluded that Mr. McCuistion continued to meet the definition of a SVP 

and that conditional release to a less restrictive alternative would threaten community 

safety.  

       In response, Mr. McCuistion submitted a declaration from Dr. Lee Coleman, MD. 

Dr. Coleman concluded that Mr. McCuistion did not meet -- and indeed, had never 

met -- the criteria for continued confinement. 

              Given these statutory requirements, I have reviewed institutional 
       records and professional evaluations of Mr. McCuistion and I have formed 
       the opinion that his evaluators have not presented any evidence that such a
       mental abnormality exists, or has ever existed.  Instead, they have relied on 
       his past crimes: the required "mental abnormality" has been "determined" 
       by simply summarizing his past behavior, and the "evidence" for the 
       alleged disorder is a recitation of the details of his past behavior.  

Clerk's Papers (CP) at 617 (emphasis omitted).  Dr. Coleman also attacked the legitimacy 

of Washington's SVP commitment scheme.

              Dr. DeMarco claims that "Paraphilia Not Otherwise Specified 
       (Nonconsent) is an accepted diagnosis among practitioners knowledgeable 

                                               3 

No. 81644-1

       about sexual offenders."  I believe it would be more accurate to say that the 
       only practitioners who use this label are those who perform SVP 
       evaluations.  But regardless of how many use it, the so-called "diagnosis" is 
       obviously nothing more than doublespeak for the crime of rape.  If this is 
       the best the evaluators are capable of doing, when seeking the "congenital 
       or acquired condition," surely it means that the entire evaluation process is 
       a sham created to fulfill legal and legislative agendas. 

Id. at 622-23. In addition to Dr. Coleman's declaration, Mr. McCuistion submitted a law 

review article providing guidelines for forensic psychologists, several declarations from 

special commitment center (SCC) staff attesting to his good behavior throughout his stay 

at the SCC, and two articles providing empirical data on recidivism.  One article, 

prepared by Canadian researchers in 2004, addressed various predictors of recidivism for 

male sex offenders, including number of previous convictions, age, length of time in the 

community without subsequent offenses, type of crime (rape versus incest), and victims' 

gender.  The researchers found a significant correlation between age and recidivism, 

finding that offenders under age 50 at the time of release were twice as likely to reoffend 

within 15 years as those over age 50.  The other article, prepared by the Washington State 

Institute for Public Policy in 2004, indicated that sex offenders have lower recidivism 

rates than other types of offenders and that recidivism decreases with advancing age.  In 

particular, the article stated that for every five years' difference in age at release, felony 

recidivism among sex offenders drops by 3.4 percent and violent felony recidivism by 1.4 

percent.

       In his briefing, Mr. McCuistion urged the trial court to consider the correlation 

between aging and recidivism, maintaining that according to Dr. van Dam, the "fantasies 

                                               4 

No. 81644-1

and the behaviors" associated with paraphilias "'often diminish with advancing age in 

adults.'" Id. at 608 (quoting 2005 annual review at 16).  Similarly, in an interview with

Dr. van Dam, he argued that he was unlikely to reoffend because he no longer used 
alcohol and was older and therefore less impulsive.2

       The trial court found that the State had met its burden to present prima facie

evidence justifying continued commitment and that Mr. McCuistion had failed to present

prima facie evidence that his condition had changed such that he no longer met the 

criteria for commitment or that conditional release to a less restrictive alternative would 

be appropriate.  The trial court dismissed Dr. Coleman's report as "essentially a re-

argument of the original finding that Mr. McCuistion is a sexually violent predator" and 

reasoned that Dr. Coleman's disagreement "with past examiners and fact-finders does 

not, itself, make his opinion the correct one."  Id. at 585. The court further explained that 

"[t]he change in his behavior within the confines of a secure facility does not demonstrate 

that his mental disorder has been changed in any way" and that "his refusal to participate 

in sexual deviancy treatment compounds the issue."  Id.

       Mr. McCuistion sought discretionary review in the Court of Appeals, arguing that 

RCW 71.09.090 violated due process and separation of powers principles and that he had 

presented prima facie evidence that he no longer met the criteria for commitment.  The 

2 After the show cause hearing had taken place, Mr. McCuistion apparently supplemented the 
record with various SCC records as well as an inspection of care report addressing conditions of 
care at the SCC.  See Verbatim Report of Proceedings (Oct. 27, 2006) at 19-20; CP at 574.  The 
court found that these new materials were "relevant" but did not compel the court to order an 
evidentiary hearing.  CP at 577.
                                               5 

No. 81644-1

commissioner summarily dismissed Mr. McCuistion's constitutional claims, noting that 

the Court of Appeals had rejected similar arguments in In re Detention of Fox, 138 Wn. 
App. 374, 396-400, 158 P.3d 69 (2007) (Fox I).3 Next, the commissioner concluded that

Mr. McCuistion had "presented no evidence that his physical or mental condition had 

changed since the trial court originally found him to be a SVP" and that "[w]ithout such 

evidence, the trial court was not required to order a new commitment trial."  Ruling Den. 

Review, State v. McCuistion, No. 35805-1-II, at 7 (Wash. Ct. App. Jan. 30, 2008).  A 

three-judge panel of the court denied McCuistion's motion to modify the commissioner's 

ruling.  

       We granted discretionary review, reversed the Court of Appeals' decision, and 

remanded for a show cause hearing under the pre-2005 statute.  State v. McCuistion, 169 

Wn.2d 633, 238 P.3d 1147 (2011), withdrawn May 20, 2011. The State subsequently 

moved for reconsideration, which we granted.  Order Granting Mot. for Recons., State v. 

McCuistion, No. 81644-1 (Wash. Feb. 9, 2011). We then withdrew our original opinion.

                                         ANALYSIS

                                    The statutory scheme

       Chapter 71.09 RCW governs the civil commitment of SVPs in Washington State.  

This chapter defines a sexually violent predator as "any person who has been convicted 

of or charged with a crime of sexual violence and who suffers from a mental abnormality 

3  Fox I was reversed on remand after this court held in In re Detention of Elmore, 162 Wn.2d 27, 
168 P.3d 1285 (2007), that the 2005 amendments were not retroactive.  See In re Det. of Fox, 
144 Wn. App. 1050, 2008 WL 2262200 (Fox II) (reversing Fox I in light of Elmore).
                                               6 

No. 81644-1

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(18). Under this 

statutory scheme, prosecutors may petition for indefinite civil commitment when a 

convicted sex offender is about to be released from confinement, among other 

circumstances.  RCW 71.09.030. The filing of such a petition triggers a probable cause 

determination followed by a full evidentiary trial, at which the individual enjoys a 

panoply of procedural protections, and the fact finder must determine, beyond a 

reasonable doubt, whether the individual meets the definition of a SVP.  RCW 71.09.040-

.060. If the court or jury finds beyond a reasonable doubt that the individual is a SVP, he 

must be committed to the custody of the Department of Social and Health Services 

(DSHS) "until such time as:  (a) The person's condition has so changed such that the 

person no longer meets the definition of a sexually violent predator; or (b) conditional 

release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest 

of the person and conditions can be imposed that would adequately protect the 

community."  RCW 71.09.060(1). Once an individual has been committed, he is entitled 

to a written annual review by a qualified professional to ensure that he continues to meet 

the criteria for confinement.  RCW 71.09.070.

       RCW 71.09.090 sets forth the procedures by which an individual found to be a 

SVP may petition for unconditional discharge or conditional release to a less restrictive 

alternative.  If, in the course of its annual review, DSHS finds that the individual's 

condition has changed such that he no longer meets the definition of a SVP or conditional 

                                               7 

No. 81644-1

release to a less restrictive alternative would be appropriate, DSHS must authorize the 

individual to petition for unconditional discharge or conditional release to a less 

restrictive alternative.  RCW 71.09.090(1). The court must order an evidentiary hearing 

upon receipt of the petition.  Id.

       Alternatively, if DSHS does not authorize such a petition, the court must set a 

show cause hearing unless the individual affirmatively waives the right to petition for 

unconditional discharge or conditional release to a less restrictive alternative. RCW 

71.09.090(2)(a).  The purpose of the show cause hearing is to determine whether the 

individual is entitled to an evidentiary hearing.  Id. At the show cause hearing, the State 

bears the burden to present prima facie evidence that the individual continues to meet the 

definition of a SVP and that conditional release to a less restrictive alternative would be 

inappropriate.  RCW 71.09.090(2)(b).  The court must order an evidentiary hearing if the 

State fails to meet its burden or, alternatively, the individual establishes probable cause to 

believe his "condition has so changed" that he no longer meets the definition of a SVP or 

that conditional release to a less restrictive alternative would be appropriate.  Id.; In re 

Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002) (Petersen II) ("We hold there 

are two possible statutory ways for a court to determine there is probable cause to 

proceed to an evidentiary hearing under former RCW 71.09.090(2): (1) by deficiency in 

the proof submitted by the State, or (2) by sufficiency of proof by the prisoner."). 

       In 2005, the legislature amended RCW 71.09.090 by adding what is now 

subsection (4) and redesignating former subsection (4) as subsection (5).  Laws of 2005 

                                               8 

No. 81644-1

ch. 344, § 2. Subsection (4) provides:  

              (4)(a) Probable cause exists to believe that a person's condition has 
       "so changed," under subsection (2) of this section, only when evidence 
       exists, since the person's last commitment trial, or less restrictive alternative 
       revocation proceeding, of a substantial change in the person's physical or 
       mental condition such that the person either no longer meets the definition 
       of a sexually violent predator or that a conditional release to a less 
       restrictive alternative is in the person's best interest and conditions can be 
       imposed to adequately protect the community.
              (b) A new trial proceeding under subsection (3) of this section4 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 for 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.

The 2005 amendments thus limited the means by which a committed person may show he 

has "so changed" to where he has had (1) "[a]n identified physiological change" making 

him "unable to commit a sexually violent act and this change is permanent," or (2) "[a] 

change in the person's mental condition brought about through positive response to 

continuing participation in treatment."  RCW 71.09.090(4)(b).

4 RCW 71.09.090(3) sets forth the procedures for an evidentiary hearing to determine whether a 
SVP is entitled to unconditional discharge or conditional release to a less restrictive alternative.  
                                               9 

No. 81644-1

                                               10 

No. 81644-1

                                 The probable cause hearing

       Mr. McCuistion does not dispute the sufficiency of the State's prima facie

evidence.  Instead, he argues that because he presented prima facie evidence that he no 

longer meets the definition of a SVP, he has both a statutory and constitutional right to an 

evidentiary hearing.  We disagree.  Mr. McCuistion has failed to show a physiological 

change or a treatment-induced change to his mental condition, as required by RCW 

71.09.090(4)(b).  Moreover, even if we consider evidence beyond that which is permitted 

by the 2005 amendments to show Mr. McCuistion has "so changed," as the trial court did 

here, we would still conclude that the trial court correctly denied his request for an 

evidentiary hearing.

       The standard of proof at the show cause hearing is "probable cause." Petersen II, 

145 Wn.2d at 796.  While the probable cause standard is not a stringent one, it allows the

court to perform a critical gate-keeping function.  Under this standard, a court must 

assume the truth of the evidence presented; it may not "weigh and measure asserted facts 

against potentially competing ones." Id. at 797. At the same time, the court can and must 

determine whether the asserted evidence, if believed, is sufficient to establish the 

proposition its proponent intends to prove.  Id. at 798 ("sufficiency of proof by the 

prisoner" warrants evidentiary hearing).  In determining whether probable cause exists, 

the trial court is entitled to consider all of the evidence, including evidence submitted by 

the State.  A trial court's determination as to whether evidence establishes probable cause 

is subject to de novo review.  Id. at 799.

                                               11 

No. 81644-1

       RCW 71.09.090(2)(c) requires an individual seeking an evidentiary hearing to 

establish probable cause to believe his condition has changed.  As the trial court

recognized, Dr. Coleman's declaration is nothing more than a collateral attack on the 

original finding that Mr. McCuistion was a sexually violent predator; it does not 

demonstrate change.  

       As Mr. McCuistion correctly notes, the probable cause standard bars the trial court 

from weighing the evidence.  However, at the same time, it does not require a trial court 

to discredit the original verdict when presented with a contrary opinion.  Thus, Dr. 

Coleman's disagreement with previous experts was not grounds for relitigating a settled 

issue, and contrary to Mr. McCuistion's assertion, the trial court did not need to weigh 

the evidence to reach this conclusion.

       Similarly, staff declarations attesting to Mr. McCuistion's good behavior at the 

SCC do not establish probable cause to believe that Mr. McCuistion is no longer a SVP.  

If believed, these declarations demonstrate that Mr. McCuistion behaves appropriately in 

a secure and highly structured environment.  They do not suggest that Mr. McCuistion no 

longer suffers from a mental abnormality or personality disorder or, alternatively, that if 

he continues to suffer from such a condition, it would be unlikely to cause him to engage 

in predatory acts of sexual violence if conditionally released to a less restrictive 

alternative or unconditionally discharged. Moreover, these declarations speak to Mr. 

McCuistion's current condition -- not to a change in his condition.  In sum, even when 

taken in conjunction with Mr. McCuistion's other evidence, these declarations are 

                                               12 

No. 81644-1

insufficient to establish probable cause to believe that Mr. McCuistion's condition has 
changed such that he no longer meets the criteria for confinement.5

       Further, the scientific studies Mr. McCuistion presented do not establish probable 

cause to believe Mr. McCuistion has changed such that he is no longer a SVP.  The data 

Mr. McCuistion presented on aging and recidivism showed a significant difference in 

recidivism between offenders older than 50 and younger than 50; it did not demonstrate a 

correlation between age and recidivism within each of these subcategories.  Mr. 

McCuistion was 45 years old at the time of the show cause hearing and thus not within 

the age category with lower recidivism rates. More importantly, he had aged only three 

years since the initial commitment order, and he has failed to demonstrate that a three-

year age difference had a measurable effect on his risk of reoffending.  Thus, despite Mr. 

McCuistion's vague assertions that he had become less impulsive with age, the evidence 

he presented was insufficient to establish probable cause to believe that his condition had 

"so changed."  RCW 71.09.090(2)(a).  

       Likewise, his bare assertion that he no longer consumed alcohol, coupled with his 

failure to participate in substance abuse treatment while confined, does not establish 

probable cause to believe he no longer meets the criteria for confinement.  In sum, we 

5 By way of contrast, Mr. McCuistion asks this court to take judicial notice of disciplinary 
problems among other SCC residents, as described in major newspapers.  Even if we were to take 
judicial notice of this evidence and consider it in conjunction with Mr. McCuistion's other 
evidence, it is not sufficient to establish probable cause.  Though not all SCC residents behave 
well in a secure facility, evidence of a resident's good behavior at the SCC does not provide a 
sufficient basis for a court to conclude that Mr. McCuistion no longer meets the definition of a 
SVP.  
                                               13 

No. 81644-1

hold that the trial court's denial of an evidentiary hearing comported with the statutory 

requirement that a full evidentiary hearing be granted only if Mr. McCuistion met his 

probable cause burden to show change as specified by RCW 71.09.090, both pre- and 

post-2005 amendments.

       Mr. McCuistion next contends that he is entitled to an evidentiary hearing as a 

matter of substantive due process.  Again, Mr. McCuistion is mistaken. Requiring change 

as a prerequisite for an evidentiary hearing -- a statutory requirement that pre-dated the 

2005 amendments -- does not offend substantive due process principles.  

       Under the due process clause of the Fourteenth Amendment, an individual subject 

to civil commitment is entitled to release upon a showing that he is no longer mentally ill 

or dangerous.  Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S. Ct. 1780, 118 L. Ed. 2d 

437 (1992); O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 

(1975); Jones v. United States, 463 U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 

(1983).  However, once a fact-finder has determined that an individual meets the criteria 

for commitment as a SVP, the court accepts this initial conclusion as a verity in

determining whether an individual is mentally ill and dangerous at a later date.  Cf. Burke 

v. Pepsi-Cola Bottling Co. of Yakima, 64 Wn.2d 244, 246, 391 P.2d 194 (1964) (court 

may not substitute its judgment for that of the jury where there is evidence that, if 

believed, would support the verdict); City of Aberdeen v. Regan, 170 Wn.2d 103, 108, 

239 P.3d 1102 (2010) ("Collateral estoppel works to prevent litigation of issues that were 

resolved in a prior proceeding.").  Accordingly, where an individual was found beyond 

                                               14 

No. 81644-1

reasonable doubt to be mentally ill and dangerous at the time of his commitment trial, a 

showing that he no longer satisfies the constitutional criteria for confinement necessarily

requires a showing of change.  See Laws of 2005 ch. 344, § 1 ("These provisions are 

intended only to provide a method of revisiting the indefinite commitment due to a 

relevant change in the person's condition, not an alternate method of collaterally 

attacking a person's indefinite commitment for reasons unrelated to a change in 

condition."). 

       Substantive due process requires only that the State conduct periodic review of the 

patient's suitability for release.  Jones, 463 U.S. at 368.  A committed person's statutory 

right to show his condition has "so changed" provides additional safeguards that go 

beyond the requirements of substantive due process.   See id.  There is no substantive due 

process right to a full annual evidentiary hearing based upon a mere showing of a change 

in a single demographic factor.  See id.  To conclude otherwise would lead to an endless 

cycle of review and rereview.

       Indeed, this court already has upheld the pre-2005 requirement that an individual 

seeking an evidentiary hearing present prima facie evidence of a change in condition.  In 

In re Personal Restraint of Young, 122 Wn.2d 1, 39, 857 P.2d 989 (1993) (Young I), we 

considered and rejected a substantive due process challenge to our SVP commitment 

scheme, holding that the procedural safeguards at the initial commitment hearing and the 

procedures for periodic review under former RCW 71.09.090 were sufficient to ensure 

that "the commitment is tailored to the nature and duration of the mental illness."  See 

                                               15 

No. 81644-1

also In re Det. of Petersen, 138 Wn.2d 70, 81, 980 P.2d 1204 (1999) (Petersen I) ("Our 

sexually violent predator statute unequivocally contemplates an indefinite term of 

commitment, not a series of fixed one-year terms with continued commitment having to 

be justified beyond a reasonable doubt annually at evidentiary hearings where the State 

bears the burden of proof.").

       The statutory standard for continuing Mr. McCuistion's involuntary commitment 

remains unchanged by the 2005 amendments.  The State must provide an evaluation on a 

yearly basis demonstrating that Mr. McCuistion continues to meet the definition of a 

SVP.  Because the State concluded from its annual review that McCuistion continued to 

meet this definition, we hold that the trial court's order denying Mr. McCuistion's request 

for an evidentiary hearing comported with substantive due process requirements.  Had 

McCuistion established probable cause to believe he had "so changed" under the 

requirements of the 2005 amended statute, he would have had a statutory right, not a 

constitutional right, to a full evidentiary hearing.  While Dr. Coleman asserted in his 

declaration that Mr. McCuistion did not meet the criteria for confinement and indeed had 

never met these criteria, his declaration did not account for the discrepancy between his 

conclusion and the jury's initial finding that Mr. McCuistion met SVP criteria.  

Consequently, ordering a new trial on the basis of Dr. Coleman's declaration would have 

required the trial court to discredit the jury's initial determination, effectively allowing 
Mr. McCuistion to collaterally attack his commitment.6

6 SVPs are not precluded from collaterally attacking their initial commitment orders.  However, 
the appropriate vehicle for a collateral attack is a personal restraint petition.  
                                               16 

No. 81644-1

                          Facial challenge to the 2005 amendments

       Mr. McCuistion also presents a facial challenge to the 2005 amendments to RCW 

71.09.090, which allow for an evidentiary hearing only upon a showing that the 

individual has undergone a physiological change or a change in mental condition due to 

treatment.  He claims the amendments violate substantive due process "by divorcing the 

ability to gain a new trial from [sic] question of the person's current mental state and 

dangerousness."  Pet'r's Suppl. Br. at 3; see RCW 71.09.090(4).  In particular, Mr. 

McCuistion argues:

              Using success in treatment as the only viable avenue for winning a 
       full re-commitment trial is fraught with scientific uncertainty and unmoored 
       from the necessary requirement that commitment may not continue when a 
       person is not currently likely to commit sexually violent offenses due to a 
       mental disorder. 

Pet'r's Suppl. Br. at 14.  

       Constitutional questions are questions of law and, accordingly, are subject to de 

novo review.  Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006).  

Statutes are presumed constitutional, and the burden is on the challenger to prove 

otherwise.  Id.  

       Because civil commitment involves a massive deprivation of liberty, it must meet 

the demands of substantive due process.  Foucha, 504 U.S. at 80.  Liberty is a 

fundamental right.  Id.; Young I, 122 Wn.2d at 26 (citing United States v. Salerno, 481 

U.S. 739, 750, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)).  Accordingly, a civil 

commitment scheme like this one is constitutional only if it is narrowly drawn to serve 

                                               17 

No. 81644-1

compelling state interests.  Young I, 122 Wn.2d at 26.  As noted, civil commitment 

statutes are constitutional only when both initial and continued confinement are

predicated on the individual's mental abnormality and dangerousness.  Foucha, 504 U.S. 

at 77-78; O'Connor, 422 U.S. at 575; Jones, 463 U.S. at 368; Jackson v. Indiana, 406 

U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972) ("At the least, due process 

requires that the nature and duration of commitment bear a reasonable relation to the 

purpose of the commitment."); Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 

138 L. Ed. 2d 501 (1997) (civil commitment in sexually violent predator context requires 

mental abnormality rendering the individual dangerous). 

       Essentially, McCuistion argues that the 2005 amendments violate substantive due 

process because they prohibit a court from ordering a new trial even when the SVP does 

not meet the criteria for continued confinement.  This is not the case.

       In Young I this court held that the SVP commitment scheme satisfies substantive 

due process because it requires the State to prove beyond a reasonable doubt that the SVP 

is mentally ill and dangerous at the initial commitment hearing and that the State justify

continued incarceration through an annual review.  122 Wn.2d at 26, 39; see also RCW 

71.09.070 (requiring annual mental examination to determine whether the committed 

person currently meets the definition of an SVP with a report of the findings sent to the 

committing court).  If the individual no longer meets the definition of a SVP, then "the 

secretary shall authorize the person to petition the court for conditional release" or 

"unconditional discharge" and the court "shall within forty-five days order a hearing."  

                                               18 

No. 81644-1

RCW 71.09.090(1). This statutory scheme comports with substantive due process 

because it does not permit continued involuntary commitment of a person who is no 

longer mentally ill and dangerous.

       The 2005 amendments do not alter the constitutionally critical annual review 

scheme.  Instead, the amendments only change the requirements necessary to gain a full 

evidentiary hearing through the statutory protections created by the show cause process.  

The legislature had every right to alter a scheme that provides protections beyond what is 

required by substantive due process to ensure committed persons do not abuse the system 

to receive full annual evidentiary hearings every year based solely upon a change to a 

single demographic factor.

       McCuistion speculates that a person who has not participated in treatment or who 

has a single demographic change, such as age, may nevertheless no longer be mentally ill 

and dangerous but remain committed; however, this argument assumes that the annual 

review process fails to properly identify those who are no longer mentally ill and 

dangerous.  

       "'[A] facial challenge must be rejected unless there exists no set of circumstances

in which the statute can constitutionally be applied.'"  In re Det. of Turay, 139 Wn.2d 

379, 417 n.27, 986 P.2d 790 (1999) (quoting with approval Ada v. Guam Soc'y of 

Obstetricians & Gynecologists, 506 U.S. 1011, 1012, 113 S. Ct. 633, 121 L. Ed. 2d 564 

(1992) (Scalia, J., dissenting)).  As the State aptly recognizes, facial challenges are 

generally disfavored.  

                                               19 

No. 81644-1

       Facial challenges are disfavored for several reasons.  Claims of facial 
       invalidity often rest on speculation.  As a consequence, they raise the risk of 
       premature interpretation of statutes on the basis of factually barebones 
       records.  Facial challenges also run contrary to the fundamental principle of 
       judicial restraint that courts should neither anticipate a question of 
       constitutional law in advance of the necessity of deciding it nor formulate a 
       rule of constitutional law broader than is required by the precise facts to 
       which it is to be applied.  

Resp't's Resp. to Br. of Amicus Curiae at 1-2 (quoting Wash. State Grange v. Wash. 

State Republican Party, 552 U.S. 442, 449-51, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) 

(internal citations and quotations omitted)).

       The legislature enacted the 2005 amendments to "address the 'very long-term' 

needs of the sexually violent predator population for treatment and the equally long-term 

needs of the community for protection from these offenders."  Laws of 2005, ch. 344, § 

1. The legislature specifically found "that the mental abnormalities and personality 

disorders that make a person subject to commitment under chapter 71.09 RCW are severe 

and chronic and do not remit due solely to advancing age or changes in other 

demographic factors."  Id.  The legislature wanted to ensure that the statutory focus 

remains on treatment and did not want to remove the incentive for successful treatment 

participation.  Id. The legislature also stated that persons committed as SVPs "generally 

require prolonged treatment in a secure facility followed by intensive community 

supervision in the cases where positive treatment gains are sufficient for community 

safety."  Id.

       Mr. McCuistion contends that the legislature's findings are unworthy of deference 

                                               20 

No. 81644-1

because they rested on testimony from interested parties (including the attorney 

representing the State in this matter and two attorneys who filed amicus briefs) rather 

than "detailed research."  Pet'r's Answer to Amicus Filed by Wash. Ass'n of Prosecuting 

Attorneys at 4-6. However, also testifying in support of the 2005 amendments was Henry 

Richards, superintendent of the SCC and a psychologist and researcher by training. Mr. 

Richards provided empirical evidence in support of this legislative finding by testifying 

that the proposed bill "[p]revents a misapplication of relatively weak and sometimes not 

carefully thought through scientific evidence that really isn't scientific and it's not 

generally accepted and hasn't really been empirically validated, certainly on our 

population."  Hr'g on S.B. 5582 Before H. Criminal Justice & Corrections Comm., 59th 

Leg., Reg. Sess. (Wash. Mar. 25, 2005).  He further testified that "most of what we know 

about the science says that any estimates tend to push their severity toward the extreme, 

toward the more severe, not some sort of simple algorithm where we would reduce their 

risk by the mere passage of time."  Id.  We have no basis to discredit the legislature's 

empirical findings on this matter.

       Hendricks, 521 U.S. 346, is instructive.  In upholding Kansas' sexually violent 

predator act, the United States Supreme Court rejected the detainee's argument that the 

statutory term "mental abnormality," a term developed by the state legislature and not the 

psychiatric community, conflicted with the Court's long standing requirement that an 

individual subject to civil commitment suffer from a "mental illness."  Id. at 358-59.  

Citing the terms "insanity" and "competency," the Court explained that it had 

                                               21 

No. 81644-1

"traditionally left to legislators the task of defining terms of a medical nature that have 

legal significance." Id. at 359. Referencing the widespread disagreement among 

psychiatric professionals concerning pedophilias and paraphilias, it further noted that 

"when a legislature 'undertakes to act in areas fraught with medical and scientific 

uncertainties, legislative options must be especially broad and courts should be cautious 

not to rewrite legislation.'" Id. at 360 n.3 (quoting Jones, 463 U.S. at 370).  

       By the same token, because predicting recidivism among SVPs is "fraught with 

medical and scientific uncertainties," we owe substantial deference to the legislature's 

finding that "the mental abnormalities and personality disorders that make a person 

subject to commitment under chapter 71.09 RCW are severe and chronic and do not remit 

due solely to advancing age or changes in other demographic factors."  Id.; Laws of 2005,

ch. 344, § 1; see Wash. State Legislature v. Lowry, 131 Wn.2d 309, 320, 931 P.2d 885 

(1997) (court defers to legislative findings of fact). 

       The deference we owe generally to the factual findings of the legislature also 

supports our conclusion that a judicial inquiry into the degree of scientific rigor 

underlying the findings at issue is not required.  See, e.g., City of Tacoma v. O'Brien, 85 

Wn.2d 266, 270-71, 534 P.2d 114 (1975) ("Legislatures must necessarily make inquiries 

and factual determinations as an incident to the process of making law, and courts 

ordinarily will not controvert or even question legislative findings of facts."); Hoppe v. 

State, 78 Wn.2d 164, 169, 469 P.2d 909 (1970) ("where a legislative declaration of the 

basis and necessity for an enactment does appear in the enactment that declaration is to 

                                               22 

No. 81644-1

be deemed conclusive as to the circumstances asserted and must be given effect unless, 

aided only by facts of which a court can take judicial notice, it can be said that the 

legislative declaration on its face is obviously false"); Lenci v. City of Seattle, 63 Wn.2d 

664, 668, 388 P.2d 926 (1964) ("And, if a state of facts justifying the ordinance can 

reasonably be conceived to exist, such facts must be presumed to exist and the ordinance 

passed in conformity therewith.  These rules are more than mere rules of judicial 

convenience. They mark the line of demarcation between legislative and judicial 

functions." (citation omitted)). 

       Mr. McCuistion fails to establish that individuals may cease to be mentally ill or 

dangerous without treatment or physiological change or that the 2005 amendments to 

chapter 71.09 RCW violate substantive due process by requiring positive change through 

treatment or physiological change.  This is so because the statutory basis for continued 

commitment remains the same after the 2005 amendments:  mental abnormality and 

dangerousness, which the State must reevaluate annually.

                                   Procedural due process

       The question of whether an individual's liberty interest is adequately protected is 

evaluated under procedural due process.  In re Pers. Restraint of Bush, 164 Wn.2d 697, 

704, 193 P.3d 103 (2008).  Because the 2005 amendments do not alter the standard for 

continued commitment -- that the person continues to be mentally ill and dangerous -- the 

question is whether the 2005 requirements for establishing probable cause and thus 

gaining a full postcommitment hearing satisfy procedural due process.  

                                               23 

No. 81644-1

       Applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 

96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the State contends that the 2005 amendments meet

due process.  Under Mathews, this court balances three factors:  "First, the private interest 

that will be affected by the official action; second, the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; and, finally, the Government's interest, including the 

function involved and the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail."  Id. 

       Given the extensive procedural safeguards in chapter 71.09 RCW, the risk of an 

erroneous deprivation of liberty under the challenged amendments is low.  See id.  As 

noted, before the State may commit an individual as a SVP, it must hold a full, 

evidentiary trial at which the individual enjoys an array of procedural protections and the 

State bears the burden to prove beyond a reasonable doubt that the individual suffers from 

a mental abnormality rendering him "more likely than not" to commit further sex 

offenses.  RCW 71.09.040-.060, .020(7). Thereafter, the individual is entitled to annual 

written reviews by a qualified professional to ensure that he continues to meet the criteria 

for confinement.  RCW 71.09.070. The individual is entitled to a qualified expert to 

assist in this determination.  Id. Where DSHS finds that the individual no longer meets 

the criteria for confinement, he is entitled to an evidentiary hearing, at which he again 

enjoys a panoply of procedural protections.  RCW 71.09.090(1), (3). Even if DSHS finds 

that the individual continues to meet the criteria for confinement, the individual is entitled 

                                               24 

No. 81644-1

to a show cause hearing, at which he has the right to counsel and to present responsive 

affidavits or declarations (though he does not enjoy the right to be present at this 

hearing).  RCW 71.09.090(2).

       As noted earlier, the 2005 amendments do not alter the standard for continued 

commitment.  The State is still required to evaluate the SVP annually to determine 

whether the person continues to meet the definition of a SVP.  If not, a person is entitled 

to a full evidentiary hearing within 45 days.  RCW 71.09.090(1). In addition, a SVP is 

entitled by statute to a show cause hearing where the State is required to present a prima 

facie case that the individual continues to be mentally ill and dangerous, and the SVP 

need only present evidence that refutes the State's probable cause showing.  

Assuming -- as we must -- that the legislature is correct that a single demographic is 

insufficient to demonstrate that the individual has "so changed" as to no longer be 

mentally ill and dangerous and, additionally, that change of that nature requires

participation in treatment, the procedure established by the legislature ensures that 

individuals who remain committed continue to meet the constitutional standard for 

commitment, namely dangerousness and mental abnormality.  Thus, it is unlikely to result 

in an erroneous deprivation of liberty.

       Finally, the State has a substantial interest in encouraging treatment, preventing the 

premature release of SVPs, and avoiding the significant administrative and fiscal burdens 

associated with evidentiary hearings.  See Mathews, 424 U.S. at 335.  By making 

treatment the only viable avenue to a release trial (absent a stroke, paralysis, or other 

                                               25 

No. 81644-1

physiological change), the State creates an incentive for participation in treatment.  The 

State directs our attention to several authorities demonstrating a link between sex 

offender treatment and decreased recidivism.  See, e.g., Grant Duwe & Robin A. 

Goldman, The Impact of Prison-Based Treatment on Sex Offender Recidivism, Sexual 

Abuse:  A Journal of Research and Treatment 1 (Sept. 2009), 

http://sax.sagepub.com/content/21/3/279.abstract ("[P]articipating in treatment 

significantly reduced the hazard ratio for rearrest by 27% for sexual recidivism. . . .  

These findings are consistent with the growing body of research supporting the 

effectiveness of cognitive-behavioral treatment for sex offenders.").  But see, e.g., Robert 

A. Prentky et al., Sexually Violent Predators in the Courtroom:  Science on Trial, 12

Psychol. Pub. Pol'y & L. 357, 380 (2006) ("Although numerous studies have 

demonstrated that cognitive-behavioral interventions can reduce sexual recidivism in the 

general population of sex offenders, until a sufficient number of those who are civilly 

committed are released into the community, it will be difficult to ascertain the efficacy of 

treatment in these SVP programs.").  Similarly, to the extent that untreated individuals 

present a significant risk of reoffending, the State has an interest in protecting public 

safety by restricting evidentiary hearings to those who have participated in treatment.  

       The parties vigorously dispute the cost of release trials and the precise impact of 

the majority decision on the public fisc.  See Br. of Amicus Curiae King County 

Prosecuting Attorney Daniel T. Satterberg at 7-8 (maintaining that a "typical" release trial 

"easily cost taxpayers in excess of $400,000"); Pet'r's Answer to Amicus Filed by King 

                                               26 

No. 81644-1

County Prosecutor Satterberg at 5 (arguing that "Satterberg's accounting of expenses 
appears unreliable and not capable of judicial notice").7  However, we need not identify a 

precise dollar amount to conclude that returning to the pre-2005 regime to would have a 

significant fiscal impact.  

       In sum, although the individual's interest in liberty is substantial, so too is the 

State's interest in encouraging treatment and avoiding costly and unnecessary release 

trials, and the risk of erroneous deprivation associated with the 2005 amendments is 

minimal.  On balance, the 2005 amendments satisify procedural due process.  See 

Mathews, 424 U.S. at 335.  

                                    Separation of powers

       Finally, Mr. McCuistion contends that the 2005 amendments violate the separation 

of powers doctrine. We disagree. 

       This court has drawn a clear distinction between legislative and judicial functions. 

       "A judicial inquiry investigates, declares and enforces liabilities as they 
       stand on present or past facts and under laws supposed already to exist. 
       That is its purpose and end. Legislation on the other hand looks to the 
       future and changes existing conditions by making a new rule to be applied 
       thereafter."

City of Tacoma v. O'Brien, 85 Wn.2d 266, 272, 534 P.2d 114 (1975) (quoting Prentis v. 

Atl. Coast Line Co., 211 U.S. 210, 226, 29 S. Ct. 67, 53 L. Ed. 150 (1908)); see also 

7 Mr. McCuistion urges this court to disregard the factual assertions in King County Prosecutor 
Satterberg's amicus brief, arguing that appellate briefs cannot rely on facts outside the record.  
However, we declined the invitation to disregard this information when we denied Mr. 
McCuistion's petition to strike Satterberg's brief.  At the same time, by allowing answers to the 
State's motion for reconsideration and to the various amicus briefs filed on behalf of the State, we 
gave Mr. McCuistion an opportunity to counter the factual assertions of the State and its amici.
                                               27 

No. 81644-1

Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 144, 744 P.2d 1032, 750 

P.2d 254 (1987) ("Here, the Legislature's retroactive amendment of RCW 21.20.430 does 

not impede upon the court's right and duty to apply new law to the facts of this case. . . . 

Instead, the amendment is a legislative enactment of a facially neutral law for the court to 

apply to the facts before it.").  In enacting the 2005 amendments, the legislature did not 

apply existing law to a particular set of facts but rather created a rule of general 

application to determine when a SVP is entitled to an evidentiary hearing.  This action 

falls squarely within the realm of legislation.  See O'Brien, 85 Wn.2d at 272. 

       A recent Court of Appeals opinion, Fox I, 138 Wn. App. 374, addressed a similar 

challenge to the 2005 amendments to RCW 71.09.090.  There, Division Two held that the 

legislature did not violate the separation of powers doctrine in enacting the 2005 

amendments because it simply provided "a facially neutral law to apply to pending 

litigation" and "did not engage in a case by case application of law to a specific set of 

facts."  Id. at 394, 395 n.13. 

       Mr. McCuistion contends that the legislature invades the province of the fact 

finder by preventing it from considering relevant and otherwise admissible evidence as to 

an individual's mental condition.  To the contrary, it is not unusual for the legislature to 

enact legislation mandating the exclusion of certain types of otherwise admissible 

evidence.  See, e.g., RCW 5.60.060 (mandating the exclusion of evidence resulting from 

privileged communications); RCW 9.73.050 (mandating the exclusion of evidence 

obtained in violation of RCW 9.73.030, which prohibits the interception and recording of 

                                               28 

No. 81644-1

private conversations).

       Mr. McCuistion also argues that by enacting subsection (4) in direct response to In 

re Detention of Ward, 125 Wn. App. 381, 104 P.3d 747 (2005), and In re Detention of 

Young, 120 Wn. App. 753, 86 P.3d 810 (2004) (Young II), the legislature overstepped its 

authority by attempting to contradict previous judicial determinations.  In Young II, an 

individual previously found to be a SVP sought an evidentiary hearing on the basis of an 

expert's opinion that he no longer met SVP criteria in light of his advanced age.  120 Wn. 

App. at 761. The State argued that the expert's opinion was not grounds for a new 

evidentiary hearing because it implied that the individual had never been a SVP and thus 

attacked the initial grounds for commitment.  Id. at 762. The Court of Appeals held that 

the validity of Mr. Young's initial commitment was irrelevant and that due process 

requires an evidentiary hearing whenever an individual presents sufficient evidence to 

prove he does not qualify as a SVP, whether or not he has participated in treatment.  Id. at 

758 n.7, 759-60.  In Ward, the Court of Appeals relied on Young II in holding that "[i]f a 

detainee provides new evidence establishing probable cause that he is not currently a 

sexually violent predator, due process requires a trial on the merits, regardless of whether 

his evidence could have also challenged the basis of his original commitment."  125 Wn. 

App. at 386. In enacting the 2005 amendments, the legislature took direct aim at these 

decisions.  Laws of 2005, ch. 344 ("The legislature finds that the decisions in In re 

Young, 120 Wn. App. 753, review denied, [152] Wn.2d [1007] (2004), and In re Ward, 

[125] Wn. App. [381] (2005) illustrate an unintended consequence of language in chapter 

                                               29 

No. 81644-1

71.09 RCW."). 

       Contrary to Mr. McCuistion's contention, this legislative action did not run afoul 

of separation of powers principles.  Both Young II and Ward were Court of Appeals 

decisions and, as such, did not provide the final word on the constitutionality of denying 

an evidentiary hearing based on actuarial evidence indicating that an individual no longer 

meets SVP criteria.  Thus, the legislature was free to enact the legislation it did and await 

a final pronouncement from this court on the constitutionality of its actions. 

                                       CONCLUSION

       We hold that Mr. McCuistion had neither a statutory nor constitutional right to an 

evidentiary hearing because he did not present prima facie evidence that his condition had 

changed such that he no longer met the criteria for confinement.  In addition, we conclude 

that on their face and as applied to Mr. McCuistion, the challenged amendments do not 

violate substantive due process, procedural due process, or separation of powers 

principles.  Accordingly, we uphold the 2005 amendments to RCW 71.09.090 and affirm 

the Court of Appeals. 

                                               30 

No. 81644-1

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:
                                                         Justice James M. Johnson

        Justice Charles W. Johnson

        Justice Susan Owens

        Justice Mary E. Fairhurst

                                               31